Britned Development Ltd v ABB AB And ABB Ltd

Britned Development Ltd v ABB AB And ABB Ltd

The Court of Appeal upheld the High Court's approach that damages for breach of competition law are compensatory and must be based on actual loss suffered, not on savings made by the cartelist. The judge's assessment of overcharge, lost profits, and the effect of the Regulatory Cap was within his discretion and not plainly wrong. The award for cartel savings was set aside as it was not a recoverable head of loss. The Regulatory Cap could reduce damages to avoid overcompensation, and the judge's 10% reduction was upheld. The lost profits claim failed as BritNed would not have chosen a higher capacity cable even absent the cartel.

Parties
Appellant/claimant/respondent to Cross Appeal: BritNed Development Limited; Respondents/defendants/appellants to Cross Appeal: ABB AB and ABB Limited
Jurisdiction
England and Wales
Judgment Date
31 October 2019
Procedural Posture
Civil Appeal (competition Law Damages) / Court of Appeal Judgment on Appeal From High Court
Outcome
BritNed's appeal dismissed; ABB's cross-appeal on cartel savings allowed.
Legal Topics
Cartel Damages, Breach of Statutory Duty, Assessment of Damages, Regulatory Cap, Collateral Benefits, Restitution, Lost Profits, Compound Interest
Competition Law Tort Law European Union Law Cartel Damages Breach of Statutory Duty Assessment of Damages Regulatory Cap Collateral Benefits +3 more

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Parties

BritNed Development Limited

Appellant/claimant/respondent to Cross Appeal

ABB AB and ABB Limited

Respondents/defendants/appellants to Cross Appeal

Procedural Posture

Civil Appeal (competition Law Damages) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 What principles govern the assessment of damages for breach of competition law (Article 101 TFEU) in a follow-on claim?
  2. 2 How should the overcharge caused by cartel conduct be quantified?
  3. 3 Should the Regulatory Cap imposed by sectoral regulation reduce the damages recoverable?

Ratio Decidendi

The Court of Appeal upheld the High Court's approach that damages for breach of competition law are compensatory and must be based on actual loss suffered, not on savings made by the cartelist. The judge's assessment of overcharge, lost profits, and the effect of the Regulatory Cap was within his discretion and not plainly wrong. The award for cartel savings was set aside as it was not a recoverable head of loss. The Regulatory Cap could reduce damages to avoid overcompensation, and the judge's 10% reduction was upheld. The lost profits claim failed as BritNed would not have chosen a higher capacity cable even absent the cartel.

Court Disposition

BritNed's appeal dismissed; ABB's cross-appeal on cartel savings allowed.

Orders

  • Damages to BritNed reduced by 10% to reflect the Regulatory Cap.
  • Award for cartel savings set aside.