In UK’s third ever cartel damages judgment, claimants look set to recover only a fraction of their claimed damages

09/02/24

The Commercial Court has handed down judgment in Granville v LG Display [2024] EWHC 13 Comm, the follow-on damages claim brought by insolvent computer retailers Granville and OT Computers, against manufacturers of LCD panels found to have infringed Art. 101 TFEU in European Commission Decision COMP/39.309 – LCD – Liquid Crystal Displays. The claimants pleaded that they had suffered a total loss of over £60mn, but the Court’s determinations and the parties’ consequent agreed provisional quantification put the figure at around £4.4mn (of which over half comprises interest). The provisional quantification has yet to account for the effects of settlement agreements reached between the claimants and other previous defendants.

In reaching its conclusion, the Court:

• Preferred the defendants’ regression model for calculating overcharge to the claimants’ extrapolation approach, because the regression model “attempts to control for the actual effect during the infringement period of production costs, supply and demand”: [83]. Following a “modest adjustment” to the regression model figures, the Court found overcharges of 8% on LCD panels for monitor application, 4% on panels for notebook application, and 14% on panels for TV application: [143]. It would not have been appropriate to average the results of the defendants’ overcharge model with the overcharge calculations contended for by the claimants (primarily 71%): [82].
• Confirmed that a defendant can discharge its burden in establishing downstream pass-on by economic reasoning as well as by evidence, so long as the defendant provides a solid evidential foundation: [181]. The claimants’ case that the defendants had failed to prove any pass-on was “entirely unreal” – on the evidence available, there would likely have been pass-on of 50-100%: [243]. The Court assessed this figure at 65%: [247].
• Made certain findings about how lost profit on lost sales fell to be calculated. It was common ground between the parties that, if there was downstream pass-on, such an award would need to be made.

The judgment will also be of interest for conflict of laws purposes, making findings as to the territorial scope of Art. 101 TFEU and the application of the Private International Law (Miscellaneous Provisions) Act 1995 to competition law claims. In the event, the presumption of similarity issue, which arose at the pre-trial review, did not arise for determination.*

The trial judgment is here.

* At the pre-trial review [2024] 1 WLR 100, the Court held it was open to the defendants to contest at trial the applicability of the presumption of similarity to aspects of the claim properly governed by foreign laws. The judgment provided illuminating guidance on pleading requirements relating to the presumption of similarity, in light of Lord Leggatt’s reasoning in Brownlie v FS Cairo (Nile Plaza) LLC [2022] AC 995.

The PTR judgment is here.