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Antitrust Damages in the English High Court

On 9 October 2018, the High Court of England and Wales handed down its first reasoned damages award in a follow-on antitrust damages claim (BritNed v ABB). Although BritNed had claimed damages of €180 million, the Court awarded it only €13 million plus simple interest. The claims for lost profits and compound interest were dismissed. In doing so, the Court provided important guidance to parties involved in antitrust damages claims in England, indicating an approach to economic evidence that is likely to find favour with the courts.

Background

In 2014, the European Commission (the “Commission”) adopted an infringement decision finding that a number of manufacturers of underground and submarine power cables (including ABB) had participated in a market sharing and customer allocation cartel for at least 10 years.

BritNed’s damages claim concerned the supply of the UK-Netherlands electricity interconnector, a 245 km submarine cable connecting the British and Dutch electricity networks. The supply contract for it had been entered into between BritNed and supplier ABB during the period the Commission found the cartel had existed. BritNed argued that it had paid in excess of 20% more than it should have had to pay for the interconnector by reason of the cartel, and it also claimed for lost profits and compound interest.

The High Court’s judgment clarifies how English courts may approach quantifying loss in follow-on antitrust damages claims. The Court rejected in its entirety the economic regression model that had been prepared by BritNed’s expert because it was “too complex … with the result that the outcomes … are so unspecific that they simply cannot be relied upon.” The Court preferred the approach adopted by ABB, which was based on facts rather than proxies and was focused on the specific project at issue, rather than (alleged) generalised market effects.

The Court calculated the damages that it did award on the basis of: (i) a finding that as ABB was not operating in a competitive market, it was protected from the technical inefficiency in its cable design; and (ii) certain costs savings found by the judge to have been made by ABB due to its participation in the cartel. It dismissed BritNed’s claim for lost profits (namely, that without the cartel, they would have spent the same money on a bigger cable, which would have enabled them to earn more). It also found the claim for compound interest “unarguable” because BritNed was funded by its two shareholders and, hence, to the extent that there is a claim for compound interest, that claim lies with those shareholders (who were not parties to the case).

The Broader Impact

The judgment contains observations of interest beyond the specifics of this case. In terms of the weight to be placed on findings in a Commission infringement decision, the judgment emphasises that it is only the operative part of a decision and those recitals on which the operative part depends, that are binding on the court. Other recitals are not binding if the court is presented with evidence to the contrary from, for example, witnesses and contemporaneous documents.

The Court also held that there is no presumption of overcharge in cartel damages cases (although it recognised that this will change once the provisions of the Damages Directive take effect). The judge also noted that he did not think that a presumption of harm “particularly assists in the assessment of damages in cartel cases”.

The Court’s dismissal of the claimants’ model is potentially significant and illustrates the dangers inherent in introducing too much complexity into statistical models. The Court agreed with ABB that it was appropriate to rely on their reported costs as a basis for comparing prices before and after the cartel, rather than relying on proxies. In this case, the judge concluded that the range of proxies put forward by the claimants introduced significant uncertainty into the claimants’ model. As a consequence, it had poor predictive power and could not produce reliable overcharge estimates.

Finally, the judgment considered in detail the probative value of the output of regression models by reference to the concepts of statistical significance and confidence intervals. In doing so, it considered the relationship between the legal standard of proof and economic conventions. It appeared to have been discussed whether a 95% confidence interval was required, or whether 51% would do, by reference to the balance of probabilities. Emphatically not the latter, said the Court, but it also held that aligning the conventional level of probability required by statisticians and economists in assessing the results of their analysis (typically, 95%) with the 51% balance of probabilities that applied in civil litigation would be wrong. The two concepts are conceptually distinct.

© 2018 Covington & Burling LLP

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About this Author

Elaine Whiteford, Antitrust attorney, Covington
Partner

Elaine Whiteford draws on her extensive experience to advise clients on all aspects of contentious competition law. She has particular expertise in regulatory and cartel investigations, abuse of dominance cases, as well as follow-on and stand alone damages litigation and multi-jurisdictional commercial litigation involving competition law issues.

Ms. Whiteford has represented clients facing investigations by the European Commission and other European competition and sectoral regulators. She has also challenged regulatory decisions before the Competition Appeal Tribunal and the...

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