Reflections on Experts Pass-On and Other Important Lessons From CAT Judgment in Trucks Follow-On Claims

On 7 February 2023, the Competition Appeal Tribunal (the CAT) awarded c.£39 million in damages and interest to claimants Royal Mail and BT in follow-on proceedings against truck maker DAF (the Judgment).

This was the first time that damages claims arising out of the 2016 Trucks settlement decision (the Settlement Decision) by the European Commission (the Commission) proceeded to full trial and judgment in the UK.

The 840-paragraph Judgment provides valuable insights into how the CAT will assess follow-on damages claims. In particular:

• The CAT will be highly sceptical of (bare) arguments that a cartel of long duration did not lead to an overcharge.
  • The CAT will adopt a proportionate approach to assessing factual evidence.  In this case, that meant not examining individually how each contract over a 14-year period was negotiated and whether it was influenced by the cartel, and instead focusing on evidence of “a more general nature” (e.g., how prices are generally set by an infringer in the context of its organizational structure).
  • An infringer that chooses not to call witnesses with knowledge of how a cartel arrangement or anticompetitive agreement operated in practice will likely fail to overcome the prima facie case that it had an adverse effect on prices.

• Trial experts (such as economists) must be independent and seen to be so.  They must disclose all relevant matters and results, even where it does not serve the interests of the party that appointed them.
  • A defendant may find it more difficult to prove downstream pass-on if the overcharge accounts for only a small part of the claimant’s costs.

Please click here to read the full alert memorandum.