ABB’s appeal allowed in BritNed v ABB

31/10/19

The Court of Appeal (Patten, Henderson, and Asplin LJJ) has today handed down judgment in BritNed Development Limited v ABB AB & ABB Ltd, the appeal from the first cartel damages trial to reach judgment in the UK. The judgment can be found here.

At trial in Spring 2018, BritNed had claimed over €200m for breach of statutory duty arising out of the sale and installation by ABB of a high voltage submarine power cable system between the UK and the Netherlands.

BritNed was awarded damages by Marcus Smith J for each of a “baked in inefficiency” (approx. €7.5m) and “cartel savings” (approx. €5.5m) plus simple interest, subsequently reduced in a further judgment by 10% to account for the operation of the relevant regulatory cap on profits.  No order as to costs was made.

BritNed appealed in respect of the judge’s findings on overcharge, the reduction of damages due to the operation of the regulatory cap and the dismissal of BritNed’s lost profit claim at first instance.  BritNed’s appeal was dismissed.

ABB appealed in respect of the award of damages for “cartel savings”, which it contended was in breach of basic principles of compensation.  ABB’s appeal was successful.

BritNed’s entitlement to damages is therefore reduced to the overcharge finding in respect of “baked in inefficiencies”, reduced by 10% due to the operation of the regulatory cap, plus simple interest.