Follow-On Damages Claims in the U.K.

January 28, 2010

On December 21, 2009, the U.K. Competition Appeal Tribunal (“CAT”) handed down a judgment in the first follow-on damages claim, brought by Enron Coal Services Limited against English Welsh and Scottish Railway Limited, to reach trial in the U.K., based on a 2006 decision by the Office of Rail Regulation, the antitrust regulator for the U.K. rail sector. The Decision had determined that EWS had abused its dominant position, contrary to Article 82 EC Treaty (now Article 102 of the Treaty on the Functioning of the European Union), by engaging in price discrimination in the supply of rail haulage services that Enron needed for its coal supplies, thereby foreclosing Enron from the possibility of supplying coal to U.K. customers. The substance of Enron’s claim related specifically to the lost opportunity of supplying coal to electricity firm Edison Mission Energy.