UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
may obtain compound interest. The CAT may also order that interest be payable on damages for any part of the period between the date when the action arose and the date of decision of the award for damages. In Royal Mail Group Limited v DAF Trucks Limited and Others , and BT Group PLC and Others v DAF Trucks Limited and Others [2023] CAT 6, the CAT followed the approach in Sainsbury’s v Mastercard [2016] CAT 11 and awarded compound interest. The CAT noted that a claim for compound interest can better reflect a claimant’s actual interest losses and that it is perhaps surprising that compound interest is not ordered more often. It is generally understood that defendants in a cartel action are jointly and severally liable. Article 11 of the EU Damages Directive also requires member states to ensure that undertakings which have infringed com - petition law through joint behaviour are jointly and sev - erally liable for the harm caused by the infringement of competition law. There is a statutory exception to this position for small and medium-sized enterprises set out in Part 3 of Schedule 8A of the CA 1998, for infringements of competition law which took place on or after 9 March 2017. 9. Liability and Contribution 9.1 Joint and Several Liability For claims where the loss or damage suffered as a result of a cartel took place wholly on or after 9 March 2017, an immunity recipient is not liable (either alone or jointly) to pay damages as a result of the cartel infringement, subject to certain exceptions (paragraph 15, Schedule 8A, CA 1998), namely if: • the claimant is unable to obtain full compensation for the loss or damage from other undertakings involved in the cartel infringement; • the claimant acquired (or provided) a product or service that was the object of the cartel infringe - ment directly or indirectly from the immunity recipi - ent (or to the immunity recipient); • the claimant acquired a product or service contain - ing or derived from a product or service that was the object of the cartel infringement indirectly from the immunity recipient; or
• the product or service that was the object of the cartel infringement contained or was derived from a product or service provided by the claimant. The principle of joint and several liability is also subject to certain modifications in the context of settlements where the infringement of competition law occurred on or after 9 March 2017. 9.2 Contribution In England and Wales, the Civil Liability (Contribution) Act 1978 allows for contribution between persons who are jointly or severally, or both jointly and sever - ally, liable for the same damage, either in the same or new proceedings. The court may determine how liability between defendants is apportioned. In cases of cartel infringements, the approach that the courts will take to contributory liability is unclear; the court may, for instance, apportion according to perceived cartel member culpability, and/or based on volume of sales. A defendant can still bring a claim for contribu - tion against another party even when it has settled its dispute with the claimant. Where the loss or damage in a claim took place wholly on or after 9 March 2017, the amount of recoverable contribution must be determined in light of the parties’ relative responsibility for the whole of the loss or dam - age caused by the infringement, taking into account any damages paid by the other person in respect of the loss or damage, in accordance with a settlement between an infringer and a claimant. This is likely to take account of the volume of sales of the parties. 10. Other Remedies 10.1 Injunctions Injunctions are available both in the High Court and Claimants can seek injunctions in the High Court for ongoing or anticipated breaches of competition law. These may be prohibitory, mandatory, or quia timet (relating to future conduct). The applicant must show: • a good, arguable case; in the CAT. High Court
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