Enron fails in the Court of Appeal to overturn the first follow on damages action in the Competition Appeal Tribunal: Enron v EWS

19/01/11

In December 2009, in the first ever follow-on damages action to go to trial under section 47A of the Competition Act 1998, the Competition Appeal Tribunal rejected Enron's claim for damages against English, Welsh & Scottish Railways (EWS).  Enron's claim was based on the decision of the Office of Rail Regulation that EWS had abused its dominant position by offering Enron discriminatory prices; Enron said this had caused it to lose a real chance of winning a contract to supply coal to power stations in the UK.

The Court of Appeal has now dismissed Enron's appeal against the Tribunal's judgment, and refused it permission to go to the Supreme Court.  Enron argued that the Tribunal had reached findings of fact that were inconsistent with the regulator's decision.  The Court of Appeal (Lord Justices Lloyd, Jacob and Patten) has held that although section 58 of the Competition Act 1998 does make the regulator's factual findings binding on the Tribunal in a follow-on action, Enron had not pointed to any inconsistencies between the Tribunal's judgment and the regulator's binding factual findings.

The judgment is here.