Trucks: UK Damages Claims, Economic Effects, And Passing-On (Video)

• Published date: 26 April 2023
• Subject Matter: Antitrust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Cartels, Monopolies, Trials & Appeals & Compensation
• Law Firm: Norton Rose Fulbright
• Author: Norton Rose Fulbright

Kyle Le Croy: Richard, thank you for joining me. Today, we are discussing the UK Competition Appeal Tribunal's judgments in the matters of Royal Mail v DAF and BT v DAF. The two sets of proceedings were case managed together and a single judgment was handed down in February 2023. Before we get into the details of the judgment, how did the dispute arise between DAF and each of Royal Mail and BT?

Richard Whish KC: Well, it's a very interesting case, it will go down in history when we write future books on damages actions and competition law in the EU. So, the European Commission, in 2016, adopted a decision in which it found a cartel between five producers of trucks that had lasted for 14 years. DAF, the defendant here, being one of those five. Subsequently, there was also a decision against Scania. And, in this particular case, DAF was fined, I think it was ?750 million, so a very significant fine was imposed upon it. And then, of course, that attracted damages claims. Very interestingly, I was told the other day that, apparently, there are actions in at least 20 Member States in the EU - because, of course, there are fleets of trucks wherever one goes, trucks cost a lot of money, people that run fleets of vehicles have a lot of vehicles, they get replaced over a period of time. So, it's self evident that the damages claims in this case are potentially absolutely enormous. What's interesting about this judgment is it's the first time in the UK that we've had a judgment actually on the award of damages. Elsewhere in the EU there have been lots of awards. I read the other day that, in Spain, where a lot of these cases are taken individually to a local court in Valencia or Malaga, or whatever, apparently, there have been over 2,000 awards of damages so far.

Kyle Le Croy: So, it's the first substantive assessment by the English courts in the Trucks litigation.

Richard Whish KC: Yes.

Kyle Le Croy: It was also the first substantive assessment in relation to some of the pass-on arguments that the defendants had raised. I wonder, before we get into some of the details of the judgment itself, can you remind our viewers, what is the pass-on defence?

Richard Whish KC: Yes, the pass-ondefence. So, actually, it's really a very simple idea, which is if there's a cartel between widget producers and I buy widgets, I may have been overcharged by, let's say, 10 per cent of what the price otherwise would have been. Well, I'm entitled to be compensated for that harm, so I can...