UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
High Court Claimants can seek injunctions in the High Court for ongoing or anticipated breaches of competition law – prohibitory, mandatory, or quia timet (relating to future conduct). The applicant must show: • a good, arguable case; • that damages would be inadequate to remedy its losses; and • that the balance of convenience favours ordering the injunction. Where an interim injunction is sought, a claimant must give a cross-undertaking in damages to cover any loss suffered by the defendant if the former were to lose the substantive case which follows. The High Court can also award security for costs. Timing is critical. In AAH Pharmaceuticals v Pfizer Lim - ited & Unichem Limited (2007) EWHC 565 (Ch), the last-minute nature of the application and the complex - ity of assessing whether Pfizer’s conduct was anti- competitive led the court to refuse the wholesalers’ application. Without-notice applications are permitted only in exceptional, justified circumstances. In such an ex parte application (ie, made on a without-notice basis), the applicant bears the burden of full and frank disclosure to the court and – in the absence of the respondent party – must not withhold evidence that is adverse to its case. CAT The CRA 2015 gives the CAT power to grant injunctions in individual claims or collective proceedings, with the same effect as a High Court injunction and applying the same principles. Failure to comply allows the CAT to certify the matter to the High Court, which may deal with that person as if they were in contempt. An interim injunction may be sought without notice if the CAT con - siders that there are good reasons for not giving notice, which must be stated in the supporting evidence. 10.2 Alternative Dispute Resolution ADR is available and encouraged in England and Wales but is not mandatory. Antitrust disputes are arbitrable if the claim alleging an antitrust infringement falls within the ambit of an arbitration clause. In Microsoft Mobile v Sony (2017) EWHC 374 (Ch), the High Court stayed
• 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 (Contribu - tion) Act 1978 allows 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 may still claim contribution against another party even after settling 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 in the CAT.
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