UNITED KINGDOM ANTITRUST DAMAGES ACTIONS - ICC COMPENDIUM OF - International Chamber of Commerce
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ICC COMPENDIUM OF
ANTITRUST DAMAGES ACTIONS
UNITED KINGDOM
Court decisions
in key jurisdictionsICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
©2021, International Chamber of Commerce (ICC)
This chapter is part of the ICC Compendium of Antitrust Damages Actions (2021) published
by ICC.
ICC holds all copyright and other intellectual property rights in this collective work, and
encourages its reproduction and dissemination subject to the following:
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International Chamber of Commerce
33-43 avenue du Président Wilson
75116 Paris
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ICC Publication No. KS101E
2UNITED KINGDOM
Introduction
This chapter is part of the ICC Compendium of Antitrust Damages Actions (the
“Compendium”) which can be read in full on the ICC website at www.iccwbo.org.
Designed to provide decision-makers with a comparative overview of the issues most
frequently arising in private antitrust litigation in key jurisdictions, the Compendium
includes an unprecedented collection of decisions issued in the same jurisdictions. This
database is the essential complement to the overviews for a comparative approach and
will allow a better understanding of the rules presented in the compendium. Each case
summary will provide users with a brief description of the facts of the case and outline
the solutions brought by the courts to the issues raised by the case with regard to the
topics addressed in the overviews. Rather than performing keyword searches through the
common online databases in each jurisdiction, antitrust practitioners and enforcers will have
all key decisions at hand. Courts will be able to see what other courts in other jurisdictions
have decided on a given issue, which may contribute to a greater consistency and, within
the European Union, to enhance integration. This compendium also intends to provide
competition authorities with a general view on the consequences of their decisions.
Methodology for the selection of cases
The United Kingdom has a substantial history of competition-related claims being brought
in the High Court and the specialist Competition Appeal Tribunal. Most cases do not
proceed to a full trial; it is assumed that they are settled. For this reason there is little
information on the level of damages obtained by claimants, and any sums awarded in
cases proceeding all the way to trial are likely to be misleading because they represent a
substantially incomplete picture.
The cases selected by the authors represent those in which points of particular legal interest
have been raised, primarily by way of interim applications. A number raise novel issues not
yet decided and continue to be monitored. These relate in particular to the limitation and
collective action issues discussed in the memo, and to the question of the jurisdiction of the
English courts. The list is not exhaustive.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 3ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Mr Phillip Evans [as class representative] v Barclays Bank PLC and
others
Date of judgment: Issued 11 December 2019
Economic activity (NACE Code): K.66.19 — Other activities auxiliary to financial services, except
insurance and pension funding
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? Not yet
known
Claimants: Mr Phillip Evans (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Not yet known.
Defendants: Barclays Bank PLC, Citibank Were damages awarded (if so, how much
N.A., MUFG Bank Ltd, JP Morgan Europe and to whom)? If not, why not (e.g. lack
Limited, UBS AG and others of standing, causal link)? Was there
another outcome or remedy? Pending
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe Pending
current status/outcome: Merits not yet
heard
Key Legal issues: Is the dispute likely to be settled
privately? N/K
• Opt-out collective proceedings under
section 47B of the Competition Act
1998, follow-on damages and breach of
Article 101 of the TFEU
• Two “competing” class representatives
are seeking to be appointed in opt-out
proceedings, which is a novel issue for
CPO applications
Direct or indirect claims? Indirect Method of calculation of damages:
Pending
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
4 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Follow-on (EC or NCA?) or stand-alone?
Follow-on — (EC): Case AT. 40135 FOREX
Brief summary of facts
The collective proceedings combine follow-on claims for damages under S. 47A of the CA
1998 caused by the proposed Defendants’ infringement of Article 101(1) of the TFEU as
determined in two EU cartel decisions from 16 May 2019:
1) The Forex — 3-way Banana Split cartel involving UBS, Barclays, RBS, Citigroup and JP
Morgan and operating between 18 December 2007 — 31 January 2013
2) The Forex — Essex Express cartel, involving UBS, Barclays, RBS and MUFG Bank and
operating between 14 December 2009 — 31 July 2012.
Two applications have been made for “opt-out” claims. As long as no collective action has
yet been certified, this is not prohibited, and it is possible for the classes certified to be
defined differently (avoiding overlap) to allow this. In the present case(s) the definition is
essentially the same and therefore only one can be certified. If both representatives/claims
meet the conditions for certification the court will need to make new case law to decide
which should proceed.
Brief summary of judgment
The defendants applied for a preliminary hearing to be held on which opt-out claim
(Evans or O’Higgins) should proceed, since it was common ground among the parties that
both could not be certified. The CAT ruled in February 2020 that the question would not
be heard as a preliminary issue before the main certification proceedings since it raises
novel legal issues. The certification hearing is expected in March 2021, once the Merricks v
MasterCard Supreme Court judgment has been handed down. This case was the first large
scale opt-out application and raised multiple issues relevant to whether such claims should
be certified. The courts appear reluctant to certify further actions until these points have
been finally decided.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 5ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Michael O’Higgins FX Class Representative Limited v Barclays Bank
PLC and others
Date of judgment: Issued 29 July 2019
Economic activity (NACE Code): K.66.19 — Other activities auxiliary to financial services, except
insurance and pension funding
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? Not yet
known
Claimants: Mr Michael O’Higgins FX Class (If in EU) Was the EU Damages Directive
Representative Limited referred to/relied upon (and if so, for
procedural or substantive provisions)?
Not yet known.
Defendants: Barclays Bank PLC, Citibank Were damages awarded (if so, how much
N.A., MUFG Bank Ltd, JP Morgan Europe and to whom)? If not, why not (e.g. lack
Limited, UBS AG and others of standing, causal link)? Was there
another outcome or remedy? Pending
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe Pending
current status/outcome: Merits not yet
heard
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Opt-out collective proceedings under
section 47B of the Competition Act
1998, follow-on damages and breach of
Article 101 of the TFEU
• Two “competing” class representatives
are seeking to be appointed in opt-out
proceedings, which is a novel issue for
CPO applications
Direct or indirect claims? Indirect Method of calculation of damages:
Pending
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
6 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Follow-on (EC or NCA?) or stand-alone?
Follow-on — (EC): Case AT. 40135 FOREX
Brief summary of facts
The collective proceedings combine follow-on claims for damages under S. 47A of the CA
1998 caused by the proposed Defendants’ infringement of Article 101(1) of the TFEU as
determined in two EU cartel decisions from 16 May 2019:
1) The Forex — 3-way Banana Split cartel involving UBS, Barclays, RBS, Citigroup and JP
Morgan and operating between 18 December 2007 — 31 January 2013
2) The Forex — Essex Express cartel, involving UBS, Barclays, RBS and MUFG Bank and
operating between 14 December 2009 — 31 July 2012.
Two applications have been made for “opt-out” claims. As long as no collective action has
yet been certified, this is not prohibited, and it is possible for the classes certified to be
defined differently (avoiding overlap) to allow this. In the present case(s) the definition is
essentially the same and therefore only one can be certified. If both representatives/claims
meet the conditions for certification the court will need to make new case law to decide
which should proceed
Brief summary of judgment
The CAT ruled in February 2020 that the question of which opt-out claim (Evans or
O’Higgins) should be allowed to proceed would not be heard as a preliminary issue before
the main certification proceedings. That hearing is expected in March 2021, once the
Merricks v MasterCard Supreme Court judgment has been handed down.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 7ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Justin Gutmann v First MTR South Western Trains Limited and
Another & Justin Gutmann v London & South Eastern Railway Limited
Date of judgment: Issued 27 February 2019
Economic activity (NACE Code): H49.1 — Passenger rail transport, interurban
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? No
Claimants: Justin Gutmann as class (If in EU) Was the EU Damages Directive
representative for certain purchasers of referred to/relied upon (and if so, for
train tickets procedural or substantive provisions)?
Not yet known.
Defendants: First MTR South Western Were damages awarded (if so, how much
Trains Limited and Another London & and to whom)? If not, why not (e.g. lack
South Eastern Railway Limited (related of standing, causal link)? Was there
actions) another outcome or remedy? N/A
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe Not yet known
current status/outcome: Not yet heard
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Abuse of dominance
• Collective action on a stand-alone basis
• Certification of the class
Direct or indirect claims? Direct Method of calculation of damages: Not
yet certified
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
Brief summary of facts
The claims are for the damages of a large number of rail passengers who have suffered
loss as a result of the conduct of the Respondent/Proposed Defendant. The proposed class
8 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
members are holders of Transport for London (“TfL”) zonal tickets (“Travelcards”) who have
been effectively compelled by circumstances in the control of the Respondent/Proposed
Defendant to pay twice for parts of rail journeys which overlapped with the zone of validity
of their Travelcards. The claimants were unable to purchase so-called ‘boundary zone’ fares
or ‘extension tickets’, which are fares valid for travel to or from the outer boundaries of
TfL’s fare zones, intended to be combined with a Travelcard whose validity stretches to the
relevant zone boundary (“Boundary Fares”). The Applicant/Proposed Class Representative
alleges that by not making Boundary Fares sufficiently available for sale the Respondent/
Proposed Defendants have abused their position of dominance on the relevant markets.
Brief summary of judgment
The claim is a fairly rare case of a stand-alone competition claim, in which the claimants will
need to prove that the defendants’ omissions (failure to promote/facilitate the availability
of cheaper rail tickets) are a breach of competition law at all. The case will also need to
take into account the regulated nature of the market in question. There are also likely to be
issues of causation (whether the claimants would have purchased the cheaper tickets in
any event) and pass-on (since many tickets are likely to have been purchased for business
journeys and reimbursed). The characteristics of the claimants may be considered too
variable for certification as a class (raising similar issues of quantification and the “recovery
principle” as in Merricks) and quantum is likely to be heavily disputed by the defendants.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 9ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: UK Trucks Claim Limited v Iveco Magirus AG and Daimler AG
Date of judgment: Issued 18 May 2018
Economic activity (NACE Code): C.29.10 — Manufacture of motor vehicles
Court: UK Competition Authority Tribunal Was pass on raised (yes/no)? Not yet
known but likely
Claimants: UK Trucks Claim Limited (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)?
Not yet known.
Defendants: Iveco Magirus AG and Were damages awarded (if so, how much
Daimler AG and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? Not yet
proceeded to merits trial.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Not yet heard
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Collective proceedings under Section
47B of the Competition Act 1998
• Breach of Article 101 of the TFEU
• Follow on Damages
• Opt-out proceedings
Direct or indirect claims? Both might Method of calculation of damages: Not
be included — lease and purchase vehicle yet reached this stage
owners may be included in the class
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC): Case AT. 39824 Trucks
10 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Brief summary of facts
UKTC is applying for a collective proceedings order (“CPO”) permitting it to act as the class
representative bringing a collective damages action on an opt-out basis. The proposed
collective proceedings would combine follow-on actions for damages arising from a July
2016 decision of the European Commission finding that five EEA truck manufacturers
participated in an illegal cartel, in breach of Article 101 TFEU. UKTC claims that a number of
common issues arise in respect of the proposed class. UKTC also submits that it is just and
reasonable for it to be appointed as class representative. UKTC also submits that the claims
are suitable to be brought in collective proceedings and it is practical for the claims to be
brought on an opt-out basis. This application for certification is to be heard at the same
time as that for the RHA opt-out action.
The main CPO Applications hearing was re-listed for 13-20 December 2019 but has been
vacated pending the appeal to the Supreme Court in Merricks v Mastercard Inc.
Brief summary of judgment
The main hearing for the CPO application is adjourned to await the outcome of Merricks v
Mastercard which is still pending its final appeal. (Merricks was the first large scale opt-out
application and raised multiple issues relevant to whether such claims should be certified.
The courts appear reluctant to certify further actions until these points have been finally
decided.)
A preliminary issue hearing considered the litigation funding agreement, whereby the
amount paid to the litigation funder is determined by reference to the damages recovered
by the claimant. The defendants claimed that the funding was insufficient and that the
claimants would be unable to pay any adverse costs orders. On 28 October 2019 the court
found that the challenges raised by the truck companies were not grounds to refuse to
certify the class representative.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 11ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Road Haulage Association Limited — v — Man SE and others
Date of judgment: Issued 27 July 2018
Economic activity (NACE Code): Economic activity (NACE Code): C.29.10 — Manufacture of
motor vehicles
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? Not yet
known but likely
Claimants: Road Haulage Association (If in EU) Was the EU Damages Directive
Limited referred to/relied upon (and if so, for
procedural or substantive provisions)? No
Defendants: Man SE & others Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? Not yet
proceeded to merits trial.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Pending
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Collective proceedings under Section
47B of the Competition Act 1998
• Breach of Article 101 of the TFEU
• Follow on Damages
• Opt-in proceedings
Direct or indirect claims? Direct and Method of calculation of damages: N/A
indirect is proposed (class includes
purchasers of pre-owned vehicles)
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC): Case AT. 39824 Trucks
12 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Brief summary of facts
RHA is applying for a collective proceedings order (“CPO”) permitting it to act as the class
representative bringing a collective damages action on an opt-in basis. The proposed
collective proceedings would combine follow-on actions for damages arising from a July
2016 decision of the European Commission finding that five EEA truck manufacturers
participated in an illegal cartel, in breach of Article 101 TFEU. RHA claims that a number of
common issues arise in respect of the proposed class. RHA also submits that it is just and
reasonable for it to be appointed as class representative. RHA also submits that the claims
are suitable to be brought in collective proceedings and it is practical for the claims to be
brought on an opt-in basis. This application for certification is to be heard at the same time
as that for the UK Trucks opt-out action (submitted 18 May 2019).
The main CPO Applications hearing was re-listed for 13-20 December 2019 but has been
vacated pending the appeal to the Supreme Court in Merricks v MasterCard Inc.
Brief summary of judgment
Pending — [case was adjourned to await the outcome of Merricks v Mastercard which is still
pending its appeal]
One of the issues in the case will be the interplay between this application for an “opt-
in” claim and the UKTC claim which relates to the same cartel and seeks an “opt-out”
certification. Since the latter will potentially catch the same claimants as the former, the
definition of the opt-out class will need to address this and anticipate certain claimants
joining the opt-in class later.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 13ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Unlockd Ltd and Unlockd Media Technology Ltd v Google Ireland Ltd,
Google Commerce Ltd and Google LLC
Date of judgment: Claim withdrawn
Economic activity (NACE Code): J.58.2 — Software publishing
Court: High Court Was pass on raised (yes/no)? No
UK Competition Appeal Tribunal
Claimants: Unlockd Ltd and Unlockd (If in EU) Was the EU Damages Directive
Media referred to/relied upon (and if so, for
procedural or substantive provisions)? No
Defendants: Google Ireland, Google Were damages awarded (if so, how much
Commerce and Google LLC and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? No
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Judgment on
interim injunction and service out of
jurisdiction given.
No judgment — unlocked discontinued
claim.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Article 102 of the TFEU and Chapter II
prohibition
• Claim of abuse of dominance
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
14 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Brief summary of facts
Unlockd Ltd and Unlockd Media Technology Ltd (the claimants) develop a software
application (app) for users of smartphones using the Android operating system as a means
of delivering advertisements to consumers on the unlocking of their Android device.
The app is available for download on Google’s digital distribution service Google Play
Store, for which Google Ireland Ltd (D1) was the relevant counterparty, and made use of
their advertising service Admob, for which Google Commerce Ltd (D2) was the relevant
counterparty.
The claimants entered into a partnership with a mobile telephone provider, Tesco Mobile,
whose own app incorporated the claimants’ app. The defendants contended that the way
in which the claimants’ service operated breached several of their fundamental advertising
policies and informed the claimants that it would withdraw the Admob services and remove
the app from Play Store.
The claimants brought an action based on breach of competition law against Google Ireland
Ltd (D1), Google Commerce Ltd (D2) and Google LLC (D3). D3 is incorporated in Delaware
and based in California. It is the parent company of D1 and D2, which are both incorporated
in Ireland.
The claim that the defendants are in breach of Article 102 of the TFEU and the Chapter II
prohibition of the Competition Act 1998. In the alternative, Unlockd also alleges a breach of
Article 101 of the TFEU and the Chapter I prohibition based on alleged collusion between
the three Google defendants.
Brief summary of judgment
Interim Injunction
The High Court granted a limited injunction against Google, to prevent it withdrawing or
suspending a service used by the app for delivering mobile phone advertisements. The High
Court found that it would be excessive to say that the business would fail if the injunction
was not granted but that there was an appreciable risk that the relationship with Tesco
would be damaged to such an extent that damages would not be an appropriate remedy
for the applicants.
Service out of jurisdiction
The Claimants applied to serve Google LLC outside the jurisdiction of England & Wales.
The English rules on jurisdiction permit non-UK companies to be sued in England & Wales
if the claim and/or the parties fulfil certain conditions Google accepted that if the abuse
of dominance claim was limited to behaviour within the EU, however, it refused service in
relation to infringements of competition law relating to suspensions or refusal to supply
which were carried out outside the EU. The High Court agreed that Article 102 TFEU could
not be applied to actions that took place outside the EU, were not implemented in the EU
and did not have an immediate and substantial effect in the UK. The High Court therefore
granted the Claimant’s permission to serve out of jurisdiction only in so far as it related to
suspensions/ refusals to supply which took place within the EU.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 15ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
The High Court transferred the case to the CAT to allow the competition issues to be
considered by the experts there.
On 21 May 2019 the CAT gave a ruling awarding costs in favour of Google after it was
withdrawn by Unlockd (due to lack of funding).
16 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Country: United Kingdom
Case Name and Number: Apple Retail UK Limited and others v Qualcomm UK Limited and
Qualcomm Incorporated
Date of judgment: Jurisdiction judgments in May and October 2018. Case settled.
Economic activity (NACE Code): C.26.30 — Manufacture of communication equipment
Court: High Court Was pass on raised (yes/no)? N/A
Claimants: Apple Group (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)? No
Defendants: Qualcomm UK Limited and Were damages awarded (if so, how much
Qualcomm Incorporated and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? N/A
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Summary
judgment on certain parts of claim/
judgment on jurisdiction given. Case
settled April 2019.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Article 102 of the TFEU and Chapter II
prohibition
• Claim of abuse of dominance.
• Patent dispute (FRAND terms)
• Jurisdiction challenge
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 17ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Brief summary of facts
The claimants, six companies within the Apple group (including a UK company, Apple
Retail UK Limited, and the US parent company, Apple Inc), brought an action in the High
Court (Patents Court) against Qualcomm UK Limited (the First Defendant) and Qualcomm
Incorporated (the Second Defendant).
The claimants brought a single claim against the First Defendant (a UK company). They
alleged that the First Defendant was in breach of a contract made by the First Defendant,
as a member of the European Telecommunications Standards Institute (“ETSI”), requiring
it to comply with ETSI Directives, including ETSI’s Rules of Procedure and Intellectual
Property Rights (“IPR”) Policy. It was pleaded that “Qualcomm”, meaning, apparently, both
Defendants, had agreed to license Essential IPR on fair reasonable and non-discriminatory
(“FRAND”) (Clause 6.1 of the IPR Policy) terms and that the First Defendant breached
Clause 6.1 by not doing so. Clause 6.1 relates to the “owner” of the relevant IPR.
In relation to the Second Defendant, the claimants alleged the invalidity of five patents (the
patent claims). They also brought a number of additional claims, including an allegation that
the Second Defendant had, contrary to Article 102 TFEU, Article 54 of the EEA Agreement
and the Chapter II prohibition of the Competition Act 1998, abused its dominant position in
the relevant market or markets by overcharging, i.e. levying a non-FRAND charge.
Brief summary of judgment
Summary judgment and jurisdiction ruling: May 2018
The High Court held that the claim against the First Defendant had no real prospect of
success. Qualcomm (UK) Limited was not the owner of the relevant patents. Therefore, it
had not taken on any relevant obligation under ETSI’s IPR Policy and could not be seen to
have been in breach of any such obligation. Therefore, the High Court granted Qualcomm
(UK) Limited summary judgment in relation to the claims against it.
In relation to Second Defendant, the High Court was asked to examine whether Apple
should have been granted permission to serve certain of these claims on Qualcomm out
of jurisdiction. In relation to the abuse of dominance claim, the High Court decided that it
should hear further arguments on whether Apple had established to the sufficient standard
that it had suffered damage arising from the alleged overcharge in the jurisdiction, to
meet the test for damage arising from a tort in Civil Procedure Rule Practice Direction 6B
(“Gateway 9”). It therefore gave directions for further evidence to be submitted. However,
it did hold that the High Court would be a proper forum to hear claims that a UK company
(Apple Retail UK Limited) had suffered loss in England as a result of Qualcomm’s alleged
abuse of a dominant position contrary to Article 102 of the TFEU.
At the subsequent hearing on the further evidence the High Court decided to allow
jurisdiction in this case on the basis of Gateway 9.
18 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Country: United Kingdom
Case Name and Number: Walter Hugh Merricks CBE — v — MasterCard Inc and others
Date of judgment: Issued 08/09/2016 — Supreme Court judgment on preliminary issue awaited
Economic activity (NACE Code): K.64.9 — Other financial service activities, except insurance and
pension funding
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? The merits
have not yet been heard, but it is expected
that this will be an issue.
Claimants: Walter Hugh Merricks CBE (If in EU) Was the EU Damages Directive
on behalf of a class of UK adults making referred to/relied upon (and if so, for
purchases from retailers accepting procedural or substantive provisions)? No
MasterCard. [Collective action]
Defendants: MasterCard Incorporated, Were damages awarded (if so, how much
MasterCard International Incorporated and to whom)? If not, why not (e.g. lack
and MasterCard Europe SPRL (together of standing, causal link)? Was there
MasterCard) another outcome or remedy? Ongoing
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Yes, on a
preliminary issue. Application for CPO
was dismissed but on appeal to Court of
Appeal this was overturned. The merits of
the claim were not considered, since this
was a preliminary hearing on certification
of the class. The defendants successfully
sought permission to appeal to the
Supreme Court, which heard the case in
May 2020. Judgment is awaited.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Collective proceedings under section
47B of the Competition Act 1998.
• Third party funding of collective actions.
(Leading case on third party funding and
recoverability of costs from damages)
• Follow-on damages
• Opt-out proceedings and criteria for
certification. (Leading case on criteria)
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 19ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Direct or indirect claims? Indirect Method of calculation of damages: Not
yet reached this stage
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC): Case COMP/34579
MasterCard I
Brief summary of facts
The action is based on the European Commission’s 2007 decision finding that MasterCard’s
EEA multilateral interchange fees (“MIFs”) breached Article 101(1) TFEU.
Mr Merricks (the applicant/ proposed class representative) applied for a collective
proceedings order (“CPO”) permitting him, to act as the class representative bringing opt-
out collective proceedings. According to this application, the issues arising in the proposed
collective proceedings are common to the proposed class. The proposed collective
proceedings are concerned with a single infringement of Article 101 of the TFEU that caused
charges to be imposed upon businesses. These charges are said to have been higher than
they would have been had it not been for the infringement and to have been passed on by
businesses to all individuals who purchased goods and/or services from them. The relief
sought in these proceedings is damages, to be assessed on an aggregate basis and interest
and costs.
Brief summary of judgment
On 21 July 2017, the CAT ruled that the claims in this case were not eligible for inclusion in
collective proceedings. To establish a claim against MasterCard for damages arising from
its elevated multilateral interchange fees, an individual claimant would, inter alia, have to
be able to demonstrate the degree to which a retailer passed through overcharges and
the percentage impact on its prices. As there is likely to be significant variation between
different kinds of goods and services and different kinds of retailer, the issue of pass-
through could not be considered to be a common issue. The amount spent by an individual
consumer with retailers accepting MasterCard cards would also not be a common issue.
These difficulties could not be overcome in this case by claiming aggregated damages
that would then be distributed to the class members. The CAT did not consider that the
applicant had presented a sustainable methodology which could be applied in practice to
calculate a sum which reflected an aggregate of individual claims for damages. In addition,
the applicant had not put forward a reasonable and practicable means for estimating the
individual loss which could be used as the basis for distribution.
20 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Therefore, the CAT concluded that these claims were not suitable to be brought in collective
proceedings and the CAT could not make a CPO in this case. Nevertheless, the CAT
concluded that it could have authorised the applicant as a class representative, subject to
him making an amendment to his third-party funding agreement. MasterCard had disputed
this on the basis of the alleged inadequacy of the funding agreement, rather than due to
the personal skills of the applicant. The CAT’s judgment includes consideration of the new
provisions relating to costs and funding of collective proceedings under section 47C of the
Competition Act.
On appeal the Court of Appeal overturned the CAT judgment, finding:
On the question of the feasibility of calculating loss, the Court of Appeal ruled that
the “expert methodology [had to be] capable of assessing the level on pass-on to the
represented class and that there was, or was likely to be, data available to operate that
methodology“. It was not necessary for the claimant to operate the methodology in order
to gain certification, much less to produce all the relevant data. The test that Mr Merricks
had to pass was to show he had a “real prospect of success”. The Court found the CAT had
applied a higher test.
On the question of the variance in actual loss, that there was nothing in law to prevent over-
compensation of some class members, if that was the result of the aggregate approach
to calculating total damages. The Court’s view was that the introduction of a collective
damages regime showed that there was no obligation to make an award “with reference to
individual loss”. If there were such an obligation, this would “negate” the power to make an
aggregate award in “large-scale opt-out proceedings”.
The Court did not reject the need to attempt to make a distribution by reference to actual
loss entirely. It merely found that distribution on that basis was unlikely to be practicable in
this case.
The defendants successfully sought permission to appeal to the Supreme Court, which
heard the case in May 2020. Judgment is awaited.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 21ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Dorothy Gibson — v — Pride Mobility Products Limited
Date of judgment: Issued 25/05/2016, CAT judgment issued 31/03/2017
Economic activity (NACE Code): C.29.10 — Manufacture of motor vehicles
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? No
Claimants: Dorothy Gibson (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)? No
Defendants: Pride Mobility Products Were damages awarded (if so, how much
Limited and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? Claim failed
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Withdrawn in
May 2017 following decision by the CAT
that the class as described could not be
certified for collective proceedings.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Collective proceedings under section
47B of the Competition Act 1998
• OFT decision finding breach of the
Chapter I prohibition.
• Follow-on damages
• Opt-out proceedings. (Leading case on
scope of class)
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Collective Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Follow-up on NCA OFT Decision CE/9578-
12
22 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Brief summary of facts
The action was based on the OFT’s 2014 decision that a manufacturer of mobility scooters,
Pride Mobility Products Limited, and eight of its retailers had breached the Chapter I
prohibition by agreeing to restrictions on advertising discounts online. The Applicant/
Proposed Class Representative (Ms Dorothy Gibson) made an application for a collective
proceedings order (“CPO”) permitting her to act as the class representative bringing opt-
out collective proceedings. The proposed collective proceedings were to combine follow-on
actions for damages arising from the OFT’s decision. The proposed class was any person who
purchased a new Pride mobility scooter in the UK between 1 February 2010 and 29 February
2012. According to the application, the issue common to all class members was whether the
infringements, and the common practice of Pride Mobility that underlay them, were effective
in raising prices for consumers, and if so by how much. The Applicant/Proposed Class
Representative submitted that it was just and reasonable for her to be appointed as class
representative and that the claims were suitable to be brought in collective proceedings. The
relief sought was damages, to be assessed on an aggregate basis.
Brief summary of judgment
The CAT found that the claim was based both on the OFT’s infringement decision and
on “umbrella claims” and that the latter could not be the subject of a follow-on claim as
formulated because the “common issues” were not sufficiently common. No economic
evidence had been provided on the possibility of further sub-classes being certified which
might be a possible solution to this problem. The CAT also had no jurisdiction to certify the
stand-alone claim as a collective action (at that time).
However, the CAT found that the claimant representative might be certified and it did not
find that there was no prospect of the certification of the stand-alone claim going ahead.
Therefore, at the hearing of the CPO application, the CAT ruled that it would be appropriate
to grant the Applicant an adjournment to re-formulate the claim.
In fact the claimant representative chose not to proceed with the claim, which was therefore
discontinued.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 23ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Granville (and others) v Infineon Technologies AG, Micron Europe
Limited (and others)
Date of judgment: Issued: 18 May 2016, Judgment on part of the claim: 25 February 2020
Economic activity (NACE Code): C.26.2 — Manufacture of computers and peripheral equipment
Court: Commercial Court Was pass on raised (yes/no)? Not in the
preliminary issue hearing — it is an issue in
the main claim.
Claimants: Granville Technology Group (If in EU) Was the EU Damages Directive
Limited, VMT Limited and OT Computers referred to/relied upon (and if so, for
Limited procedural or substantive provisions)? DD
does not apply and the factual position
meant that it was unlikely to have been
relevant in any case.
Defendants: Infineon Technologies AG, Were damages awarded (if so, how much
Micron Europe Limited and others and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? Not yet
proceeded to merits trial.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: Yes. Defendants’
loss against OTC appealed to the Court of
Appeal.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Limitation (heard as preliminary issue)
• Key issue: whether reasonable diligence
of a liquidator is subject to a different
test than for a trading company
Direct or indirect claims? Direct and Method of calculation of damages: N/A
indirect
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
24 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC): Case COMP/38511 DRAMS
Brief summary of facts
The claimants (in liquidation) brought damages against members of the price-fixing
cartel in direct random-access memory (“DRAM”) and Rambus DRAM established in the
Commission Decision of 19 May 2010.
The claimants were subject to a limitation period of 6 years but argued that Section 32(1)
(b) of the Limitation Act provided that the limitation period would not begin to run until a
concealed right of action was discovered or could have been discovered with reasonable
due diligence.
Brief summary of judgment
The first and second claimants’ claims were time barred, because they could, with
reasonable diligence, have discovered the facts of the claim before the Decision was
published (in part due to the actual knowledge of the trading company).
The third claimant (acting by its liquidator) was not reasonably on notice of matters
meriting further enquiry such that it could be said that, had it exercised reasonable
diligence, it could have discovered matters sufficient to enable it to plead a viable claim.
(The third claimant had no actual knowledge prior to the Decision.) Its claims were not
therefore time-barred.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 25ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Shadhid Latif & Mohammed Abdul Waheed — v — Tesco Stores Limited
Date of judgment: Issued 05 February 2016 — Discontinued
Economic activity (NACE Code): G.46.3 — Wholesale of food, beverages and tobacco
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? N/A
Claimants: Shahid Latif & Mohammed (If in EU) Was the EU Damages Directive
Abdul Waheed referred to/relied upon (and if so, for
procedural or substantive provisions)?
N/A
Defendants: Tesco Stores Limited Were damages awarded (if so, how much
and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? Settled
Is/was the case subject to appeal Amount of damages initially requested:
(yes/pending/no)? If yes, briefly N/A
describe current status/outcome: The
claimants withdrew their claim following
settlement — Tesco released the covenant.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Stand-alone damages action under
section 47A of the Competition Act
• Alleged breach of the Chapter I
prohibition
• Alleged breach of the Chapter II
prohibition
• CAT Fast-track procedure
• Claim for an injunction in a restrictive
covenants case relating to land
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
26 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Brief summary of facts
In 1997, the claimants sold land to Tesco. Under the transfer agreement, the land retained by
the claimants was subject to a covenant “not to use or permit any of the Retained Land to
be used for the sale of food convenience goods or pharmacy products”.
The claimants’ damages action was based on an alleged breach of the Chapter I, or, in the
alternative, the Chapter II prohibition of the Competition Act 1998 by Tesco, as well as the
common law doctrine of restraint of trade. In particular, the claimants submitted that:
b The transfer agreement and/or the covenant constituted an agreement and/or
concerted practice that has/have the object or effect of preventing, restricting and/or
distorting competition on the relevant market within the UK.
b Further or alternatively, Tesco was dominant and/or had a significant market share
and/or significant market power that the covenant protects, thereby preventing,
restricting and distorting competition.
b The covenant adversely affected trade within the UK as it adversely affected the
ability of the claimants to develop and lease the retained land and/or it adversely
affected the sale of groceries and pharmacy products within the relevant geographic
market.
b Further or alternatively, the covenant infringed the common law doctrine of restraint
of trade and/or the Competition Act because it is wider in scope and duration than
was necessary to protect Tesco’s legitimate interests, if any, which may have existed in
1997.
This was only the second claim brought under the CAT Fast Track procedure, which is
designed to result in a trial being held within six months. The procedure is designed to limit
the costs faced by individuals and SMEs, and to provide certainty as early as possible.
Brief summary of judgment
Case settled without judgment.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 27ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Socrates Training Limited v The Law Society of England and Wales
Date of judgment: Issued 04 April 2016 — Judgment 26 May 2017
Economic activity (NACE Code): J.63.9 — Other information service activities
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? No
Claimants: Socrates Training Limited (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)? No
Defendants: The Law Society of England Were damages awarded (if so, how much
and Wales and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? N/A
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: The parties have
agreed settlement and claim discontinued
Judgments on liability, matters following
judgment and costs given.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Stand-alone damages action under
section 47A of the Competition Act.
Alleged breach of the Chapter II
prohibition
• Fast-track procedure
• Interim injunction application
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Stand-alone
28 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Brief summary of facts
Socrates Training Limited, a provider of online training, claimed that both it and the Law
Society of England and Wales offer online anti-money laundering (AML) training for law
firms on a commercial basis and online training to property lawyers to avoid mortgage
fraud and other financial crime. At some point, believed to be early in 2015, the Law Society
started to require that, as a condition of a law firm maintaining its Conveyancing Quality
Scheme (CQS) accreditation, such a firm must buy both AML online training and mortgage
fraud training from it. Socrates Training brought a damages action against the Law Society
of England and Wales. In particular, Socrates Training claimed that:
b The Law Society of England and Wales was dominant in the market for the provision
of quality certification/accreditation services to conveyancing firms.
b The Law Society of England and Wales’ insistence that firms must buy their AML,
mortgage fraud or other financial crime training from itself rather than from Socrates
Training or any other provider, was an abuse of its dominant position, restricting
competition in the downstream market for the provision of AML and financial crime
training and causing loss to the claimant. The inclusion of a tying clause of this kind is
specifically prohibited as being anti-competitive.
Brief summary of judgment
On 26 May 2017, the CAT published its judgment on liability. The CAT found that the Law
Society held a dominant position from the end of April 2015, when the CQS became a must-
have product to which close to 60% of firms active in residential conveyancing subscribed.
By reserving at least a significant part of the demand from such firms for AML/mortgage
fraud training from at least a significant number of those firms at any one time, potential
competition from other suppliers of such training was actually or potentially impaired, and
that this could discourage entry by other suppliers into this segment of the market. The
CAT concluded that, from the end of April 2015, by obliging CQS member firms to obtain
the training in mortgage fraud and AML required for CQS accreditation exclusively from the
Law Society, the latter abused its dominant position. It rejected the Law Society’s case that
there was no reasonable alternative to the mandatory training by the Law Society itself.
The CAT also found that the obligation to obtain the training required only from the Law
Society breached the Chapter I prohibition as from the same date.
On 30 May 2017, CAT published an order on matters following its judgment. The CAT ordered
that the Law Society must not oblige CQS accredited firms to purchase exclusively from
the Law Society mandatory training in mortgage fraud, anti-money laundering and financial
crime required for CQS accreditation. The order makes arrangements for costs and stays the
proceedings for two months for the parties to seek agreement on the quantum of damages.
In its ruling on costs, the CAT rejected Socrates Training’s argument that the costs should be
assessed on an indemnity basis. Socrates Training should have its costs on the standard basis
up to the capped maximum of GBP 230,000 (EUR 255,000). The CAT also rejected Socrates
Training’s argument that that it should be entitled to additional costs because of disclosure of
particular documents by the Law Society after trial, which should have been disclosed earlier.
The action was discontinued after the parties agreed terms.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 29ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: United Kingdom
Case Name and Number: Peugeot Citroen Automobiles UK Ltd and others v Pilkington Group
Limited and others (1244/5/7/15)
Date of judgment: Issued 22 December 2015 — Limitation judgment 27 July 2016
Economic activity (NACE Code): C.29.32 — Manufacture of other parts and accessories for motor
vehicles
Court: UK Competition Appeal Tribunal Was pass on raised (yes/no)? Not yet
High Court known but likely
Claimants: Peugeot Citroen Automobiles (If in EU) Was the EU Damages Directive
UK Ltd, Peugeot Motor Company Plc, referred to/relied upon (and if so, for
Peugeot Citroen Automobiles Sa, Societe procedural or substantive provisions)? No
Europeene De Vehicules Legers Du Nord
Sevel Nord, Automoviles Citroen Espana
Sa, Peugeot Citroen Automoviles Espana
Sa, Peugeot Espana Sa, Pca Slovakia
S.R.O., Saab Automobile Ab Konkursbo
Defendants: Pilkington Group Limited and Were damages awarded (if so, how much
Pilkington Automotive Limited and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? No
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe N/A
current status/outcome: No. Judgments
given in preliminary hearings on Limitation.
On 6 September 2016 the Ninth Claimant
was withdrawn by consent. On 9 January
2017 the claim (including additional claim
issued under Rule 39) was withdrawn by
consent.
Key Legal issues: Is the dispute likely to be settled
privately? N/A
• Follow on damages claim under section
47A of the Competition Act 1998
• Cartel decision of the European
Commission finding breach of Article
101(1) of the TFEU
• Precautionary action as parallel action in
High Court
• Limitation periods
• Rule 39 additional claim
30 INTERNATIONAL CHAMBER OF COMMERCE (ICC)UNITED KINGDOM
Direct or indirect claims? Direct Method of calculation of damages: N/A
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Penny Coombs,
Associate Director, Osborne Clarke LLP,
Penny.Coombs@osborneclarke.com
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC): Case COMP/39125
Carglass
Brief summary of facts
The action was based on the European Commission’s November 2008 decision fining four
companies a total of EUR1.384 billion for participation in an illegal market-sharing cartel in
the car glass sector.
The claimants claimed that they made purchases of car glass from the defendants and others
that were, by virtue of the infringement established by the European Commission, subject
to an overcharge. The claimants, therefore, claimed that they suffered loss. They claimed
damages, interest and such further or other relief as may be appropriate. The claimants stated
that they had already brought an action against the defendants in the Chancery Division of
the High Court. The claim was brought before the CAT only to protect the claimants’ position
as regards limitation, insofar as it affects the follow-on element of their existing claims.
The claim before the CAT was limited to those (follow-on) claims that could have been
brought under section 47A of the Competition Act prior to its amendment by the Consumer
Rights Act.
The claimants relied on the claim only and if and to the extent that their existing claims in
the High Court were time-barred under any applicable law, which the claimants denied.
Pilkington denied the main claim brought against it by Peugeot. However, to the extent that
it might be held liable, it claimed that the defendants from whom it claimed a contribution
to any damages (Asahi Glass and others) were jointly and severally liable for the loss and
damage caused by the infringement.
The claimants claimed that the governing law was English law because the Competition
Act 1998 and the (Competition Appeal) Tribunal Rules formed a “complete code” which did
not admit the application of foreign law. Pilkington contended that the governing law was
French law as regards the 1st to 8th claimants’ claims and Swedish law as regards the 9th
claimant’s claim. On that basis, they alleged that all the claims are time-barred under the
applicable foreign law.
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