Head of Competition Litigation Kate Pollock and Senior Associate Leah Keen have once again written a comprehensive guide to recovering European cartel damages in England, published by International Comparative Legal Guides (ICLG)
The guide covers in detail, the specific features of cartel litigation, practicalities, impact of recent developments on cartel litigation, and the dynamics of cartel litigation and conclusion.
Introduction
Cartels and other horizontal competition law infringements reduce competitive pressures between cartelists, lessening incentives to reduce prices, offer better services, innovate through research and development, or differentiate from competitors by other means,.
These behaviours harm the direct and indirect customers of cartelists. Businesses and individuals that have suffered this type of harm (e.g., by being overcharged) are entitled to recover their losses. Indeed, in many scenarios, they are entitled to recover losses suffered in both England and internationally, in the English courts. Where the relevant jurisdictional criteria are met. The ability to recover all losses in a single forum is highly attractive for claimants as it avoids the need to file multiple proceedings in a variety of jurisdictions.
Cartel claims can be high value, often running into tens of millions of pounds or higher. This is in part because collusive behaviour can last for many years before detection, and so the volume of commerce affected can be very significant. Cartels of this nature almost invariably entail cross-border behaviour, and claimants frequently have a choice of where to file proceedings. England has proven to be an attractive jurisdiction for a variety of reasons, including both favourable procedural law (such as broad disclosure options, which can be particularly important where the underlying behaviour is hidden) and practical issues such as the relative speed with which the courts move towards trial.
This chapter addresses some of the key issues that a business will weigh in deciding whether to seek recovery of losses it has suffered due to the operation of a cartel or cartel-like behaviour. While some comparisons are drawn to other jurisdictions, the focus is on recovery in England, which is often a claimant’s jurisdiction of choice. Brexit will inevitably bring some uncertainties, but as is explored in section 5, the favourable features of litigating cartel damages claims in England will remain.
The structure of the chapter is as follows: section 2 summaries some specific features of cartel litigation and how they differ from general commercial litigation; section 3 briefly comments on the scope of losses that are recoverable, section 4 addresses practicalities to be considered at an early stage of a claim; section 5 covers recent developments and looks to the future; and section 6 concludes and comments on the key dynamics of cartel litigation.
The chapter can be read in full here.
The full guide, ‘Competition Litigation Laws and Regulations’, covers common issues in competition litigation law and regulations – including interim remedies, final remedies, evidence, justifications/defences, timing, settlement, costs, appeal, leniency and anticipated reforms – in 17 jurisdictions. The broader guide can be accessed here.
You can find further information regarding our expertise, experience and team on our Competition Litigation pages.
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