UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
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 for actual loss, lost profit, and interest. There is a rebuttable pre - sumption, following the EU Damages Directive, that cartels cause harm. In BritNed Development Limited v ABB AB and ABB Limited (019) EWCA Civ 1840, the court of appeal held that damages can only be awarded on a compensa - tory (not a punitive) basis, finding it an error of law for the High Court to have based damages on ABB’s sav - ings rather than BritNed’s loss from paying an inflated price. The court of appeal found this was an error of law but agreed that claimants must show actionable harm, demonstrating a causal link between infringe - ment and damage – generally through the “but for” test, proved on the balance of probabilities, with damages putting the claimant in the position it would have been in absent the tort. An inability to prove the exact loss is not a bar to recovery. The court of appeal found the assessment of damages may involve estimation and a broad-brush approach, if grounded in the evidence. Where the claim is part of CAT collective proceed - ings, damages may be awarded on an aggregate, class-wide basis without assessing individual loss (Section 47C(2) of the CA 1998). In the first competi - tion collective action to succeed at trial, Kent v Apple ((2025) CAT 67), the CAT estimated total harm across the class. For claims where the loss or damage occurred wholly on or after 9 March 2017, under paragraph 36, Sched - ule 8A of the CA 1998 (as amended), a court or tribu - nal may not award exemplary damages in competi - tion proceedings (although the UK government has announced plans to give the CAT discretion to award exemplary damages outside collective proceedings). For claims where loss or damage occurred 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 collec - tive proceedings. Passing-On Defences The leading authorities on the pass-on defence, including Sainsbury ’ s v Mastercard (2016) CAT 11 and Royal Mail Group Limited v DAF Trucks Limited and Others (2023) CAT 6, are discussed in 2.5 Pass-On Defence . Interest on Damages English courts have discretion to order pre-judgment interest on damages, at the claimant’s borrowing rate or a fair commercial rate, and may award compound interest if the claimant shows it paid interest on debt as a result of its losses. The CAT may similarly order interest for any part of the period between when the action arose and the damages award. In Royal Mail Group Limited v DAF Trucks Limited and Others (2023) CAT 6 (upheld in (2024) EWCA Civ 181), the CAT fol - lowed Sainsbury ’ s v Mastercard (2016) CAT 11 and awarded compound interest, noting compund interest can better reflect a claimant’s actual interest losses. Defendants in a cartel action are generally jointly and severally liable. Article 11 of the EU Damages Direc - tive also requires EU member states to ensure under - takings that have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by the infringement. There is a statu - tory exception for SMEs under Part 3, Schedule 8A of the CA 1998, for infringements occurring on or after 9 March 2017. 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 of the CA 1998) – namely, if: 9. Liability and Contribution 9.1 Joint and Several Liability • the claimant is unable to obtain full compensation for the loss or damage from other undertakings involved in the cartel infringement;
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