Monday, 11 July 2011

Evidence in claims for breach of competition rules

It's long been open to anyone damaged by someone's breach of competition rules to claim damages, but there have been few cases of it happening. You'd think that if the competition authorities had found there was an illegal cartel, and had fined participants, it would be dead easy to get damages, but National Grid are currently demonstrating just how tricky it can be to adduce the necessary evidence. It's applied to the High Court to be given access to documents used in support of leniency applications. And the leniency deal (without which the authorities would have no chance of finding out about the existence of cartels) is a first past the post one: in contract terms, the second whistleblower is unable to give valuable consideration in return for immunity - the authorities already have the information. The result could be an unseemly rush to the Office of Fair Trading as soon as the cartel meeting is over ...

So, although it's not an IP case, this one will be worth watching. This report in The Guardian also makes the important point that prospective claimants are also likely to be concerned about the damage that pursuing a claim would do to commercial relationships. How much simpler life was when if someone ripped you off you didn't still need to be nice to them in future.

Postscript: Pfleiderer AG v Bundeskartellamt (Case C-360/09); [2011] WLR (D) 196 - ICLR summary says “A person adversely affected by an infringement of European Union competition law was not precluded by the provisions of that law from being granted access to documents relating to the leniency procedure for the purposes of bringing a civil action for damages.”

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