MOL (Europe Africa) Ltd & Ors v Mark McLaren Class Representative Ltd [2022] EWCA Civ 1701 (21 December 2022)

MOL (Europe Africa) Ltd & Ors v Mark McLaren Class Representative Ltd [2022] EWCA Civ 1701 (21 December 2022)

The Court of Appeal held that the CAT did not err in certifying the collective proceedings. The CAT was entitled to find the silo pricing theory plausible on the evidence and to treat the overall pricing theory as a factual issue for trial, not a legal bar to certification. The methodology advanced by the Class Representative met the required threshold for certification, and any adjustments for overall pricing or discounts could be made at trial. The CAT correctly applied the legal principles of causation and aggregate damages in collective proceedings.

Citation
[2022] EWCA Civ 1701
Parties
Appellant / Respondent to Cross Appeal: MOL (Europe Africa) Ltd; Appellant / Respondent to Cross Appeal: Mitsui O. S. K. Lines Ltd; Appellant / Respondent to Cross Appeal: Nissan Motor Car Carrier Co. Ltd; Appellant / Respondent to Cross Appeal: Kawasaki Kisen Kaisha Ltd; Appellant / Respondent to Cross Appeal: Nippon Yusen Kabushiki Kaisha; Appellant / Respondent to Cross Appeal: Wallenius Wilhelmsen Ocean AS; Appellant / Respondent to Cross Appeal: Eukor Car Carriers Inc; Appellant / Respondent to Cross Appeal: Wallenius Logistics AB; Appellant / Respondent to Cross Appeal: Wilhelmsen Ships Holding Malta Ltd; Appellant / Respondent to Cross Appeal: Wallenius Lines AB; Appellant / Respondent to Cross Appeal: Wallenius Wilhemsen ASA; Respondent / Cross Appellant: Mark McLaren Class Representative Ltd
Jurisdiction
England and Wales
Judgment Date
21 December 2022
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From Competition Appeal Tribunal
Outcome
Appeal dismissed; Cross-appeal dismissed
Legal Topics
Collective Proceedings Order, Cartel Damages, Pass on, Aggregate Damages, Certification Methodology, Limitation, Causation
Competition Law Civil Procedure Collective Proceedings Order Cartel Damages Pass on Aggregate Damages Certification Methodology Limitation +1 more

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Parties

MOL (Europe Africa) Ltd

Appellant / Respondent to Cross Appeal

Mitsui O. S. K. Lines Ltd

Appellant / Respondent to Cross Appeal

Nissan Motor Car Carrier Co. Ltd

Appellant / Respondent to Cross Appeal

Kawasaki Kisen Kaisha Ltd

Appellant / Respondent to Cross Appeal

Nippon Yusen Kabushiki Kaisha

Appellant / Respondent to Cross Appeal

Wallenius Wilhelmsen Ocean AS

Appellant / Respondent to Cross Appeal

Eukor Car Carriers Inc

Appellant / Respondent to Cross Appeal

Wallenius Logistics AB

Appellant / Respondent to Cross Appeal

Wilhelmsen Ships Holding Malta Ltd

Appellant / Respondent to Cross Appeal

Wallenius Lines AB

Appellant / Respondent to Cross Appeal

Wallenius Wilhemsen ASA

Appellant / Respondent to Cross Appeal

Mark McLaren Class Representative Ltd

Respondent / Cross Appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From Competition Appeal Tribunal

Legal Issues

  1. 1 Whether the CAT erred in certifying collective proceedings based on the proposed methodology for pass-on and aggregate damages in a cartel case
  2. 2 Whether the CAT failed to address the 'overall pricing' theory advanced by the appellants
  3. 3 Whether the methodology for establishing loss was adequate for certification

Ratio Decidendi

The Court of Appeal held that the CAT did not err in certifying the collective proceedings. The CAT was entitled to find the silo pricing theory plausible on the evidence and to treat the overall pricing theory as a factual issue for trial, not a legal bar to certification. The methodology advanced by the Class Representative met the required threshold for certification, and any adjustments for overall pricing or discounts could be made at trial. The CAT correctly applied the legal principles of causation and aggregate damages in collective proceedings.

Court Disposition

Appeal dismissed; Cross-appeal dismissed

Orders

  • The appeal by the appellants is dismissed.
  • The cross-appeal by the respondent is dismissed.