UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
to such matters that the witness would be asked by the relevant party to give, and the witness would be allowed to give, in evidence-in-chief if they were called to give oral evidence. In addition, a witness statement must set out only matters of fact of which the witness has personal knowledge that are relevant to the case, and must identify by list what documents, if any, the witness has referred to or been referred to for the pur - pose of providing the evidence set out in their trial/ appeal witness statement. Both the witness and the relevant legal representative must sign a statement of compliance to state they have complied with this practice direction. 7.2 Expert Witness Role and Procedure Expert evidence in the High Court may only be giv - en with the permission of the Court and follows the exchange of witness statements from the witnesses of fact. The expert has a duty to the court overriding any obligation to the instructing party. Expert evidence is normally in the form of a written report followed by written questions to the expert and possible cross- examination at trial. The courts may request that experts prepare joint statements which seek to clarify the areas of agreement and disagreement in advance of the trial. The court may also order the appointment of a single joint expert (though this is less common in antitrust claims). There have also been cases where courts have ordered that expert evidence be given concurrently, also known as “hot-tubbing”, which is typically judge- led and results in more limited time for cross-examina - tion by the parties (recently in National Grid Electricity Transmission plc v ABB Ltd ). The CAT also has similar rules for dealing with expert evidence, and may also appoint its own expert. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages Damages are awarded on a tortious basis. ECJ case law requires compensation to be available not only for actual loss but also for lost profit and interest. There is
a rebuttable presumption, following the implementa - tion of the EU Damages Directive, that cartels cause harm. In BritNed Development Limited v ABB AB and ABB Limited [2019] EWCA Civ 1840, the Court of Appeal found that damages can only be awarded on a com - pensatory, rather than punitive basis. In the High Court’s earlier judgment, it had found that damages should be awarded based on savings ABB was said to have made, rather than the loss suffered by BritNed through paying an inflated price due to the competi - tion law infringement. The Court of Appeal found this was an error of law and that the High Court’s decision did not comply with the compensatory principle in English law. The Court of Appeal did, however, agree with the High Court that claimants must show action - able harm, which required demonstrating a causal link between the infringement and the damages, gener - ally through the “but for” test of causation. The ele - ments of the cause of action have to be proved on the balance of probabilities, and damages awarded in order to put the claimant in the position it would have been in had the tort not been committed. A claimant’s inability to prove the exact sum of its loss was not a bar to recovery. The assessment of damages would often involve some estimation and assumption, and the court could take a broad-brush approach based on an understanding of the context in which the harm was suffered. However, the assessment had to be grounded in the evidence. For claims where the loss or damage suffered was wholly on or after 9 March 2017, under paragraph 36, Schedule 8A of the CA 1998 (as amended), a court or tribunal may not award exemplary damages in competition proceedings (although, note that the UK government has announced plans to give the CAT discretion to award exemplary damages for breaches of competition law (aside from in collective proceed - ings)). For claims where loss or damage was before 9 March 2017, punitive and exemplary damages are available in certain limited circumstances in England and Wales. Section 47C of the CA 1998 also prevents the CAT from awarding exemplary damages in collective pro - ceedings.
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