UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
infringement decision establishes the infringement, but the claimant must prove it caused loss. In a stan - dalone claim, the claimant must establish both the infringement and that it caused loss. The standard of proof, as in civil claims generally, is the “balance of probabilities”. In addition, for claims where the loss or damage occurred wholly on or after 9 March 2017, there is a rebuttable presumption that cartels cause loss or damage (see Article 17 of the EU Damages Directive and Schedule 8A, paragraph 13 of the CA 1998). If defendants can show that the alleged damage suf - fered by the claimant was passed on to the claimant’s own customers, this may be a whole or partial defence (the “passing-on” defence) – of which, the burden of proving lies with the defendant. 2.5 Pass-On Defence Damages awarded to a claimant as a purchaser of a cartelised product may be reduced if the defendant can prove in fact that the overcharge was passed on to the claimant’s own customers. In Sainsbury ’ s v Mastercard (2016) CAT 11, the CAT held that the pass-on defence is only available for identifiable price increases by a firm to its customers and that the defendant must show (on the balance of probabilities) that there is another class of claim - ant, to whom the overcharge was passed on – in the absence of which, a claimant’s damages should not be reduced. The court of appeal upheld the CAT’s finding that Mastercard’s defence failed for want of an identifiable price increase causally connected to the UK Multilateral Interchange Fee. The Supreme Court held that the court of appeal erred by requir - ing greater precision in quantifying pass-on from the defendant than from the claimant. Once pass-on is raised, the claimant bears a heavy evidential burden to show how it dealt with recovering its costs, given that most relevant information sits exclusively with the claimant. The Supreme Court concluded that the law does not require unreasonable precision in proving the amount passed on. For claims where the loss or damage suffered from an infringement took place wholly on or after 9 March
2017, the claimant is presumed (subject to rebut - ting evidence) to have proved that the overcharge or underpayment was passed on if: • the defendant infringed competition law; • there was an overcharge or underpayment as a result of the infringement; and • the product or service was provided to the cus - tomer by the claimant. This was applied by the CAT in Royal Mail Group Lim- ited v DAF Trucks Limited and Others (2023) CAT 6, which held that the pass-on causation test requires the defendant to prove a “direct and proximate” causative link between the overcharge and any price increase by the claimants. the court of appeal upheld this finding. In Le Patourel , the CAT adopted a similar approach. Although no infringement was found, its obiter view on quantum found no pass-on, because: • class members were unaware of the overcharge at the time; • the overcharge and the businesses affected were likely small, with other firms in the same market facing no such overcharge; and • there was no evidence of a direct relationship between BT’s standalone fixed-voice services and products whose prices would have risen due to pass-on. In Granville Technology Group Limited v Chunghwa Picture Tubes Ltd , LG Display Co Ltd (2024) EWHC 13, the High Court addressed overcharge and pass- on in a cartel affecting liquid crystal display (LCD) panel prices. The claimants, personal computer (PC) and notebook manufacturers and sellers, alleged inflated LCD panel prices due to the cartel’s activity. The court found overcharge rates of 8% for monitors, 4% for notebooks and 14% for TVs, and estimated 50–100% of the overcharge was likely passed on, given market competitiveness and variable pass-on rates. The CAT arrived at 65%, erring towards under- compensation, given the uncertainty. The court also found the claimants had suffered a significant loss of profit from reduced sales as a consequence of that pass-on. The court of appeal overturned these find -
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