The UK Competition Appeal Tribunal (“CAT”) has made it more difficult for defendants in follow-on competition damages claims to plead that a claimant has mitigated any overcharge by reducing the costs paid to other suppliers in a recent judgment (“Royal Mail/BT v DAF”).

The potential for pass-on to other suppliers as a defence received judicial approval in June 2020, in the Supreme Court judgment in Sainsbury’s v MasterCard.  Relying on that decision, a defendant in the Trucks litigation, DAF, sought leave to amend its Defence to plead that the claimants had, in response to increased prices resulting from the competition infringement, sought to mitigate any overcharge by negotiating with other suppliers for lower input costs and/or otherwise reducing its costs of supply. The CAT refused, finding that a defendant should raise this defence only where there is some plausible and known basis in fact for making the argument.

The case therefore clarifies (and restricts) the position following Sainsbury’s v MasterCard: a defendant cannot merely rely on “broad economic or business theory to support a reasonable inference that the claimant would in the particular case have sought to mitigate its loss”. The CAT concluded that this would put a significant and costly evidential burden on a claimant, in effect automatically requiring it to give burdensome disclosure and evidence about its business operations and procedures (potentially over many years) to prove that there was no such pass-on, and this cannot have been what the Supreme Court intended. Instead, a defendant must be able to point to identifiable facts or circumstances “on the basis of which an assertion that costs mitigation was causally linked to the overcharge carries a degree of conviction.” A general plea will be liable to be struck out.

In practice, this will be difficult for a defendant at the pleadings stage, as it will not normally have sufficient information about a claimant’s business operations. A defendant may know of specific circumstances from its own commercial dealings with the claimant, or have knowledge of the claimant’s interactions with other suppliers, but this will be quite rare. Alternatively, documents provided during disclosure may suggest there has been such mitigation. Defendants may be able to rely on these documents to amend their pleading (if the court does not consider it too late to do so), or they may support specific disclosure requests.

While the factors that will make such a plea more plausible will vary from case to case, the CAT suggested the defence might more likely arise: (i) where the overcharge can be shown to represent a significant proportion of the claimant’s overall costs, thereby triggering an internal response, (ii) the nature and/or amount of the overcharge is known to the claimant, (iii) it could be expected to have been relatively easy for the claimant’s business to reduce certain or general input costs in response to the overcharge, and/or (iv) other supplies made to the claimant by the defendant (or its associates) were renegotiated in the period following the overcharge alleged to have been caused by the anti-competitive conduct.

Photo of Louise Freeman Louise Freeman

Louise Freeman represents parties in complex commercial disputes, and co-chairs the firm’s Commercial Litigation and European Dispute Resolution Practice Groups.

Described by Legal 500 as “one of London’s most effective partners” and by Chambers as “a class act,” Louise helps clients to navigate…

Louise Freeman represents parties in complex commercial disputes, and co-chairs the firm’s Commercial Litigation and European Dispute Resolution Practice Groups.

Described by Legal 500 as “one of London’s most effective partners” and by Chambers as “a class act,” Louise helps clients to navigate challenging situations in a range of industries, including life sciences, technology and financial markets. Most of her cases involve multiple parties and jurisdictions, where her strategic, dynamic advice is invaluable.

Louise also represents parties in significant competition litigation proceedings, including a number of the leading cases in England.

Louise is a key member of our market-leading Privacy and Data Security Litigation team, which advises a broad range of international clients on data privacy-related litigation. She has recently represented a client in an intervention in an appeal in the leading UK case making new law in relation to both data privacy claims and class actions.

Photo of Sinead McLaughlin Sinead McLaughlin

Sinead McLaughlin has a broad commercial disputes practice, with a particular focus on crisis management and multi-party disputes, across a number of sectors, including advising major banks and financial institutions, media and technology companies.

Her work often requires her to work across a…

Sinead McLaughlin has a broad commercial disputes practice, with a particular focus on crisis management and multi-party disputes, across a number of sectors, including advising major banks and financial institutions, media and technology companies.

Her work often requires her to work across a range of practice areas, conducting internal investigations, advising clients in relation to investigations by regulators and other authorities, and acting in any subsequent disputes or litigation which may arise.

Sinead has significant experience working in-house (on secondment), which she leverages for the benefit of her clients. Her secondments have included a long secondment at a leading global investment bank where she advised the bank on a range of contentious commercial and regulatory matters, across the firm’s businesses throughout EMEA; and to a large global company specializing in in e-commerce, cloud computing and other services, advising on contentious data and privacy issues.

Her regulatory enforcement experience includes acting in investigations alleging market abuse, systems and controls failings, financial reporting errors and GDPR compliance matters; in litigation she has acted in claims relating to data and privacy issues, mis-selling, allegations of anti-competitive behavior, and a range of contractual disputes and tortious actions. Sinead also has significant experience acting for defendants in large group litigation (also known as collective actions) in the English High Court.

Photo of Alan Kenny Alan Kenny

Focusing on high value, multi-party and multi-jurisdictional matters, Alan Kenny advises companies, banks, institutions, and high-net-worth individuals on all stages of dispute avoidance and resolution.

Alan has notable experience of high profile and complex commercial litigation, competition litigation, and class actions. He acts…

Focusing on high value, multi-party and multi-jurisdictional matters, Alan Kenny advises companies, banks, institutions, and high-net-worth individuals on all stages of dispute avoidance and resolution.

Alan has notable experience of high profile and complex commercial litigation, competition litigation, and class actions. He acts for clients in a broad range of industries with particular experience in financial services, technology, fast moving consumer goods, commodities, and media.

Alan has represented clients in:

  • Pre-action negotiations;
  • Mediation;
  • Commercial litigation before the English High Court and Court of Appeal (and internationally with local counsel);
  • Competition litigation, including class action proceedings before the UK’s Competition Appeal Tribunal;
  • International arbitration and trade association arbitration under a variety of rules, including LCIA, HKIAC, SCAI, LMAA, GAFTA and FOSFA;
  • Responding to enquiries from – and defending enforcement proceedings brought by – regulators in the UK and internationally;
  • Bringing competition-related complaints to the European Commission, leading to investigations and dawn raids;
  • Proceedings to obtain emergency and interim relief, including: security, vessel and container arrest, freezing orders, disclosure orders, Norwich Pharmacal and Bankers Trust orders, delivery up of passport orders, search orders, committal orders, and anti-suit injunctions;
  • Settlement negotiations;
  • Proceedings to enforce judgments; and
  • Proceedings to compel UK-based third parties to produce evidence under the Hague Convention for use in foreign proceedings.

Alan is a contributing editor of the International Comparative Legal Guide to Litigation and Dispute Resolution.

Alan’s recent pro bono work includes:

  • Advising an international development charity working to combat poverty and climate change, to settle disputes with distributors relating to its projects to provide access to solar power in Malawi and Zambia.
  • Representing a charity that provides young people with opportunities to explore orchestral music, obtaining a judgment and third party debt orders to successfully recover payments made to a catering company for services that were not provided.
  • Representing a vulnerable, single-parent immigrant family facing deportation to obtain rights of residence and access to public funds and pursue UK citizenship.
  • Representing a charity that works with vulnerable women and children to remove defamatory statements relating to the charity and its staff from third party websites, search engine result pages, and other media.