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High Court hands down first judgment on cartel damages in UK courts

12/10/18

Mr Justice Marcus Smith handed down judgment this week in BritNed Development Limited v ABB AB & ABB Ltd. It is the first claim for cartel damages to reach judgment in the UK and is notable for the approach taken to expert economic evidence in the quantification of cartel damages claims.

ABB was the immunity applicant in respect of Commission Decision AT.39610 on power cables, which found an infringement of Article 101 TFEU arising from a cartel in the power cables sector.

BritNed pleaded loss of over €130 million and at trial sought compensation of 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.

As ABB was held to have infringed Article 101 in the Commission Decision, the Court did not have to decide any issues of breach of duty. The five-week trial which took place in the High Court in the spring term focussed on issues of causation and quantum.

The Court held:

That there was an Overcharge of €13,009,568, arising from (i) a “baked in inefficiency” in the width of the cabling used by ABB, which amounted to an overcharge of €7,516,639; and (ii) a “cartel saving” in respect of ABB’s common costs, which amounted to an overcharge of €5,492,929.
That BritNed’s claim for lost profits was dismissed.
That ABB’s contention that BritNed’s damages should be reduced in light of the operation of a regulatory cap on profits failed.
That BritNed’s claim for compound interest was dismissed, but that BritNed was entitled to simple interest.

A hearing to deal with consequential issues will take place on 18 October 2018.

The Judgment can be found here.

BritNed was represented by Robert O’Donoghue QC and Hugo Leith, instructed by Squire Patton Boggs (UK) LLP.

ABB was represented by Mark Hoskins QC, Sarah Ford QC and Jennifer MacLeod, instructed by Freshfields Bruckhaus Deringer LLP.

Jon Lawrence, now a member of Brick Court Chambers, was also instructed for ABB as a partner at Freshfields Bruckhaus Deringer LLP.