A. Availability of civil claims
1. Scope for civil claims in England and Wales
England and Wales is continuing to see increasing activity in competition litigation, both in relation to follow follow-on damage claims and stand-alone claims for damages and injunctive relief. A series of recent judgments have clarified how English courts will approach some of the issues seen to be “difficult” in competition litigation. The recent adoption of the Consumer Rights Bill by the UK Parliament likely will also increase the volume of claims brought. This legislation not only introduces an opt-out class action mechanism for competition damage claims but also harmonizes procedural rules applied by the civil courts and the specialist Competition Appeal Tribunal (“CAT”). These changes also mean that now no prior finding of infringement is required in order to bring an before the CAT and claims can also be transferred between the CAT and High Court. The English courts remain generous in their approach to accepting jurisdiction over competition cases. They will consider whether there is a real issue or connection between the claimants and “anchor” defendants and have construed this broadly, allowing that a subsidiary of a decision addressee domiciled in England and Wales can be used as the “anchor” for jurisdiction provided that it is alleged that the subsidiary knowingly or even innocently implemented the infringing activity that its parent engaged in (e.g. the subsidiary adopted a pricing policy that incorporated an unlawful overcharge).162 The rules on jurisdiction allow that a tortious claim may be brought either in the place where damage was suffered or in the place where the event giving rise to the harm occurred.163 English courts have taken a narrow approach toward claimants seeking to argue that England and Wales is the place where the event giving rise to the harm occurred so as to rely on Article 5(3) and the Brussels Regulation. In order to meet this criterion, the claimant must show that the event setting the tortious infringement in motion occurred in England and Wales. 164 However, it has been found that the fact that cartel meetings occurred in England and Wales is not sufficient to show that the tortious event occurred within the jurisdiction. The reality of a multi-jurisdictional cartel may well be that the harmful events occurred in several countries. 165 This may mean that claimants seeking to rely on Article 5(3) will have to rely instead on showing that damage occurred in England and Wales, perhaps by virtue of it being the place where purchases of cartelized goods were made, but this is likely to limit any claims to those for damage occurring in England and Wales.
2. Applicable limitation periods
The limitation period for bringing a tortious claim for damages resulting from an infringement of competition law (i.e., for a breach of statutory duty) in the civil courts is six years from the date upon which the cause of action accrued. Where the infringement has been deliberately concealed (or commissioned in circumstances where the breach was unlikely to be discovered for some time), as with a price-fixing cartel, the limitation period does not begin to run until the claimant discovers the cartel or the time that the court deems the claimant could, with reasonable diligence, have discovered.166 The English courts provide that limitation begins to run at the point that a claimant has sufficient facts to plead its claim. This does not require the claimant to have all details and facts relating to its claim and it is assumed generally that time will start to run no later than the announcement of an infringement decision. It may start running much sooner depending on the circumstances of the case. A recent judgment of the High Court in litigation to recover competition damages from Visa illustrates that time may begin to run at an even earlier point.167
An appeal on a point of fact or law can be made from the civil courts to the Court of Appeal (subject to permission to appeal being granted by the Court of Appeal or the relevant court of lower instance) in respect of a finding of an infringement or an award of damages. A further appeal from the Court of Appeal on points of law of general public importance lies to the Supreme Court (formerly the House of Lords), provided that permission to appeal is granted by either the Court of Appeal or the Supreme Court. In relation to claims before the CAT, section 49 of the Competition Act 1998 provides for a right of appeal against an award of damages by the CAT, including the right to appeal against the amount awarded. Appeals from the CAT are heard by the Court of Appeal, provided that the permission of the CAT or the Court of Appeal has been obtained. Appeals can be made by a party to the proceedings or a person who has sufficient interest in the matter.
4. Availability of class actions for infringement of competition law and/or damages available in England and Wales
The issue of collective redress is a hot topic – the European Commission having published a recommendation on 11 June 2013 that all Member States adopt same form of collective redress mechanism by no later than June 2015 . The English Government has proposed a number of reforms of civil claims. These include the introduction of an opt-out collective redress mechanism for competition damages and this will enter into law under Schedule 8 of the Consumer Rights Bill, which received Royal Assent in March 2015 and is expected to enter into law during 2015. The CAT will be empowered to order that two or more claims are combined into a collective action by making a collective proceedings order if the followings are met:
- The party who brought the proceedings is a party whom the CAT could authorize to act as a representative.
- The claims raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings.
Any party is able to act as a representative, whether or not that party is a claimant themselves, if the CAT considers it “just and reasonable” for that party to act as a representative. The CAT may an order all of the damages to be paid to the representative of the class (or such other person as the CAT considers fit). Any damages not claimed by claimants within a specified time period must be paid to charity. The opt-out provisions apply to UK-domiciled claimants only, but non-UK-domiciled claimants will still be required to opt-in to collective actions. Representative proceedings, where more than one person has the “same interest” in a claim, may also be brought in the civil courts. Interested persons must opt-in to the action in order to participate. This type of proceeding is relatively uncommon because the “same interest” test that each claimant must meet in order to join the proceedings is difficult to satisfy. An attempt to broaden the application of this procedural rule was made in Emerald Supplies Ltd v British Airways plc,168 so as to essentially create an opt-out representative action, failed on the basis that the criteria for identifying who might qualify for inclusion in the class depended on the outcome of the action itself and also on the basis that the members of the class might not all have the same interest in the outcome of the claim (as some were direct customers and some indirect, who would have had different interests on , for example, questions of passing-on) and so the class of affected persons was not representative. Group litigation orders (GLO) are also available and can be made where one or more claims raise “common or related issues.” This test is wider than the requirement that the persons have the “same interest,” as is required for representative proceedings (see above). GLOs are used rarely in practice.
B. Conduct of proceedings and costs
5. Burden of proof
The claimant bears the burden of proof in establishing, on the balance of probabilities, whether there has been an infringement and that he has suffered loss as a result of that infringement. In cases where a prior decision of a national competition authority or the European Commission has already established a competition law infringement, the claimant need only prove causation and loss flowing from the period of infringement established by the decision. If there is no such prior decision, the position is that the damages action will have to be commenced before the civil courts (as opposed to the CAT) and the claimant will need to establish that there has been an infringement as well as causation and loss. As noted above, the claimant must show a causal link between the infringement and any loss suffered. In order to do this, the claimant must demonstrate that “but for” the defendant’s actions, the claimant would not have suffered the loss identified and that he is therefore entitled to be restored to the financial position that he would have been in if the infringement had not occurred. Although not yet the subject of any judicial authority in the English courts, the judgment of the Court of Justice of the European Union in Manfredi169 that “any individual” could make such a claim where a “causal relationship” exists between the harm suffered and the prohibited agreement is assumed to mean that indirect purchasers are able to bring claims. In Napp Pharmaceuticals v. DGFT170, the CAT concluded that, although the standard of proof for an infringement of the competition rules in England and Wales is the ordinary civil standard (i.e., on the balance of probabilities), this standard is to be applied bearing in mind that infringements of competition law are serious matters attracting severe financial penalties. 171 The High Court in Attheraces v. BHB172 confirmed this approach, clearly stating that the standard of proof is the civil standard of a breach and consequent loss being established on the balance of probabilities, but that the seriousness of an infringement of the competition rules required that the proof of evidence must be “commensurately cogent and convincing.” The burden of proof in establishing that an agreement merits exemption under Article 101(3) TFEU or Chapter I of the Competition Act 1998 lies with the defendant, which must also prove its case on the balance of probabilities. If there is already a prior infringement decision, the defendant will not be able to invoke this defense before the courts. In relation to “objective justification” under Article 102 TFEU and Chapter II of the Competition Act 1998, the evidential burden is likely to be on the defendant. As noted above, a finding of infringement by a competition authority is not a precondition to a civil action in England and Wales. However, section 58 of the Competition Act 1998 provides that, where there has been a decision (which is no longer appealable) from a relevant competition authority or the CAT that an infringement has occurred, the civil courts are bound by it in subsequent damages claims (although a claimant will still have to demonstrate causation and loss). Moreover, national courts are not allowed to rule counter to a European Commission decision, which has already established an infringement of the EU competition rules. Note, however, that the House of Lords in Crehan v Inntrepreneur Pub Co (CPC) and Others173 made clear that, although national courts are under a duty of “sincere cooperation” and must avoid taking conflicting decisions, this does not mean that national courts must follow decisions of the European Commission in all cases, only in relation to the same agreement between the same parties. In that case, although a European Commission decision stated that the market was foreclosed, the parties in question had not been participants to the European Commission proceedings. The High Court heard further evidence and determined that the market was not foreclosed at the relevant time in respect of the parties involved in the Crehan case. The House of Lords, overturning a dissenting Court of Appeal, held that the High Court had taken the correct approach.
6. Joint and several liability of cartel participants
Liability for infringement of competition law involving multiple defendants will ordinarily be joint and several. This means that a claimant may bring an action for damages resulting from a breach of competition law against any defendant (not necessarily all potential defendants) for the entirety of the loss suffered by the claimant as a result of the anti-competitive conduct. The Civil Liability (Contribution) Act 1978 provides that any person liable for damage suffered by another may recover a contribution from any third party who is also liable in respect of the same damage. To claim such contribution, defendants can join other potentially liable parties to the action against them and/ or pursue third parties in separate proceedings (including after judgment has been given). Actions to recover contribution in reliance on the Civil Liability (Contribution) Act 1978 must be brought within two years of the date upon which the right to claim contribution accrued. It is for the court to assess how liability should be apportioned between persons responsible for the same damage. The court will make such an award as is considered just and equitable in light of each person’s actual responsibility or blameworthiness for the damage in question. The joint and several nature of the liability complicates settlement discussions because it remains open to other defendants to sue the settling defendant on the theory that the settling defendant has not settled a sufficiently large portion of the joint liability. There are mechanisms that should reduce the risk of such contribution claims being successful in effectively reopening settlement reached but such mechanisms have not yet been tested before the English courts.
7. Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
In cases before the ordinary civil courts, all parties usually will be ordered to disclose all documents on which they rely that are within their control, which adversely affect their own or the other party’s case or which support the other party’s case. The principal exception to disclosure is that privileged documents do not need to be disclosed, although it should be noted that privilege against disclosure can be waived. Such waiver can occur for inspection inadvertently (for example, if a legally privileged document is forwarded to a third party). Since October 2007, third parties to an action can obtain, without the need for permission or prior notification to the parties, any statement of case, including the particulars of claim, defense, reply and any further information filed with the civil courts. A party to an action, or any person identified in a statement of case, may apply for an order preventing or restricting disclosure of that statement of case. The CAT has a broad discretion regarding orders for disclosure, subject to the rules of privilege. The CAT may give directions for the disclosure between, or the production by, the parties of documents or classes of documents. To date, it has, however, applied its discretion in a way designed to limit the volume of documentation disclosed. There is no obligation upon national competition authorities to disclose investigation evidence to third parties in order to assist private enforcement action. However, court orders can be obtained to force such disclosure, if the court agrees that such disclosure is proportionate (considering whether the information is available from other sources and the relevance of the leniency materials to the issues in the case). Limited disclosure of specific leniency material was granted applying this analysis in National Grid Electricity Transmission plc v. ABB Ltd and others  EWHC 869 (Ch). The English courts have proved quite aggressive in ordering the disclosure of information in relation to competition law damages claims. Disclosure of the confidential version of the European Commission decision has been ordered in a number of cases. Members of the judiciary have also expressed frustration at the time taken by the European Commission to publish the non-confidential versions of decisions, describing delay as “astonishing and unsatisfactory.”174 The approach of the English courts to disclosure of leniency material and other documents will no doubt be guided by the provisions of Directive 2014/104/EU on competition damages. However, we expect the English courts to continue to take a robust view on the scope of material that should be made available to claimants and on the time at which that material should be disclosed.
8. Pre-action disclosure
Pre-action disclosure may be ordered against a prospective defendant where necessary to: (i) dispose fairly the anticipated proceedings; (ii) assist the disputes; to be resolved or (iii) save costs – although the courts will not tolerate a fishing expedition on the part of the claimant. An application for pre-action disclosure in relation to competition law claims has been rejected in circumstances where the court considered the claim to be too speculative and the scale of disclosure was too large and unfocused.175 This is not to say that pre-action disclosure will never be granted but such an application will need to be carefully considered. Pre-action disclosure may, in some circumstances, be ordered against persons who are not prospective defendants, as illustrated by the judgment of the Court of Appeal in Total E&P Soudan SA v. Edmonds176 in which a targeted request for specific documents that could be readily disclosed at little cost or inconvenience was allowed.
9. Average length of time from issue of claim to judgment in England and Wales
A claim in the civil courts typically takes between one and two years to reach a final judgment, depending on the complexity of the case and interlocutory applications brought by the defendant(s), for example, challenges to jurisdiction or stay applications pending the outcome of appeal of an infringement decision. Our experience is that civil claims have so far taken longer to resolve than is typical for other civil claims due to the relative novelty and difficulty of the issues raised in civil claims brought to date (in terms of jurisdiction, economic analysis etc.). Cases can be expedited in the civil courts and it may also be possible to bring the case to an early conclusion through: (i) an application to strike out where there are no reasonable grounds for bringing or defending the claim; or (ii) an application for summary judgment where the claimant or defendant has no real prospect of success. Claims before the CAT may be resolved faster than those filed before the civil courts. For example, in Enron Coal Services v. EWS177, which was brought in November 2008, the CAT reached final judgment in December 2009. Damages were not awarded in that case due to the claimant’s failure to establish causation. Appeals to the Court of Appeal will generally add a further year; with a similar period for a further appeal to the Supreme Court.
10. Average cost from issue of claim to judgment in England and Wales
The potential costs of litigating a claim for breach of competition law are difficult to quantify, as such costs will depend on a range of factors (e.g., number of parties, volume of documents, procedural issues, etc.). Both claimants and defendants must consider that this type of claim has the potential to become very complex and could be drawn out over a long period of time, causing costs to spiral. It is not unusual for claimant’s and defendant’s costs to exceed GBP1 million per party and sometimes to be several multiples of that amount. Disclosure, forensic accounting and economic analysis can add considerably to legal fees. English civil courts have a general discretion as to the award of costs between parties, taking account of any offers to settle that are made and the parties’ general conduct in the matter. In most cases, the losing party will be ordered to pay the successful party’s costs. In practice, the successful party generally only recovers between 70 % to 80 % of its actual costs. The CAT may make any order on costs that it considers fit in relation to the whole or part of the proceedings. Key changes to the law on costs became effective in April 2013 and include the following:
i) Cost management by the court (including the exchange of budgets between the parties and the recoverable costs being assessed against these budgets)
ii) Introduction of true contingency fees (i.e., the lawyers may receive a percentage of any final damages award)
iii) The success fee element of conditional fee agreements (the percentage by which actual costs are increased to reflect risk, if the claimant is successful) and any after-the-event insurance premium owed by a winning party will no longer be recoverable from the losing party.
iv) Extension of the scope of Part 36 offers (i.e., an offer by one party of an amount to be paid to the other to settle the dispute), so that a defendant who fails to beat a claimant’s offer made after 31 March 2013 may be ordered to pay an amount additional to the claimant’s costs (assessed on an indemnity basis so that the defendant must establish if costs claimed are not properly recoverable) plus interest
11. Third-party funding/alternative funding
There are a number of third-party and alternative funding options available in competition cases in England and Wales. A Code of Conduct for Litigation Funders was published by the Civil Justice Council on 23 November 2011 and establishes the following guiding principles:
i) A funder may receive a share of the proceeds of a claim if successful and may not seek more than the proceeds unless a material breach of the funding agreement has occurred (success is to be a contractually defined term in each agreement made)
ii) A funder must maintain adequate capital so as to meet its obligations to fund all disputes that it has agreed to fund for a minimum period of 36 months.
iii) Funders may not seek to get the litigant’s advisers to cede control of the conduct of the dispute to the funder, but the funding agreement may provide for input into settlement decisions (any dispute are to be resolved by obtaining a binding opinion from an independent barrister, who has been either instructed jointly or appointed by the bar council).
iv) Funding agreements should also set out whether the funder will be liable to the litigant to meet liabilities for: (1) adverse costs; (2) security for costs; (3) insurance premiums; and (4) any other types of financial liability that might arise other than the litigant’s own costs.
12. Alternative methods of dispute resolution
Alternative means of dispute resolution are available in England and Wales. Mediation is commonly employed to resolve disputes and court rules require parties to consider the use of mediation or other alternative dispute resolution. In addition, the High Court has held that competition law can be arbitrated if the claims alleging competition law infringement fall within the ambit of a contractual arbitration clause (ET Plus SA v. Welter178). Most claims for damages resulting from an alleged breach of competition law are resolved by settlement rather than proceeding to trial. The details of such settlements are not generally publicly reported, but some have been achieved as a result of an alternative means of dispute resolution.
13. Availability of damages and quantification
The basic rule is that damages are available and awarded in order to restore the claimant to the position it would have been in had the breach causing it loss not occurred. Thus, claimants may seek compensatory damages including interest in respect of any infringement of competition law that has caused the claimant’ loss. In Arkin v. Borchard Lines179 the judge stated (despite being of the view that there had been no breach of either Article 101 or 102 TFEU) that an assessment of damages would involve starting with the relevant market as it existed at the time of the alleged infringement and then asking what loss, if any, the infringement had, as a matter of common sense directly caused. For this purpose, it would be necessary to reconstruct the market conditions most likely to exist if no infringement had occurred (the counterfactual). By way of example, in the case of price-fixing, a customer might be awarded the difference between the price it actually paid for the goods and the price it would have paid in a competitive market. This approach has been confirmed by that taken in subsequent cases (see Devenish Nutrition Ltd v. Sanofi-Aventis SA (France) & Ors180, Crehan181, Healthcare at Home v. Genzyme182 and 2 Travel Group plc (in liquidation) v. Cardiff City Transport Services Limited183). The Court of Appeal found in Crehan that, instead of attempting to calculate the profits that the claimant might have made had he not been subject to an anti-competitive agreement, an appropriate measure of damages might instead be the value of the going concern that the claimant would have had but for the agreement as well as his actual losses. The award of damages made by the Court of Appeal in Crehan was overturned by the House of Lords (now the Supreme Court). There is no binding authority directly establishing that the concept of passing-on will be considered relevant to quantification of damages in England and Wales (i.e., where the claimant is said to have passed on any loss of profit caused by cartel prices by inflating his own prices to the ultimate consumer). However, given the Court of Justice of the European Union’s ruling in Manfredi that indirect purchasers ought to have standing to bring private claims, it seems logically consistent that the concept of passing-on should apply when quantifying damages suffered by both direct and indirect purchasers. Various judicial comments in English cases also suggest that it is very likely to be applied. The UK government consultation paper on reform of civil claims considered whether legislation should be put forward so as set a formal position on passing-on but concluded that there was not a strong case to do so and that the question might more appropriately be addressed at EU level. 184 The European Commission has stated that it will produce guidance on the quantification of harm in actions for damages based on breaches of Article 101 or 102. This guidance will not be binding upon English courts, but likely will be given weight by them in forming judgments on damages to be paid.
14. Punitive and exemplary damages
An award of exemplary damages is a theoretical possibility in a competition damages claim in England and Wales, with one award having been made in a first instance abuse of dominance case (2 Travel185), but awards are highly unlikely in most cases and any award will be modest in amount. Exemplary damages are available as a matter of principle in English law where compensatory damages are insufficient alone to punish the defendant in the following two categories of claim:
i) In relation to an oppressive, arbitrary or unconstitutional action by government
ii) In cases where the defendant’s conduct has been calculated by him to make a profit for himself, which may well exceed the compensation payable to the claimant 186
Competition law cases, if they fall within either category, will fall within the second category identified above in view of the deliberate conduct of a defendant in committing the tortious breach of his statutory duty. A claim for exemplary damages was considered and dismissed in a cartel follow-on context in the High Court case of Devenish187. In the case, arising from the vitamins cartel, the court decided that the principle of non bis in idem (i.e., double jeopardy) precludes the award of exemplary damages in a case in which the defendants have already been fined (or had fines imposed and then reduced or commuted) by the European Commission. A similar view is likely to be taken where fines are imposed by domestic authorities. The court also noted practical difficulties in making an award where there were multiple claimants suffering different degrees of injury and/or where some potential claimants are not before the court. Devenish has established that it will always be very difficult to get an exemplary damages award in a competition damages claim before the English Courts but it has not strictly ruled it out. The CAT case of 2 Travel provides the only example to date of such an award. 2 Travel was an abuse of dominance case where the domestic competition authority, (then, the OFT), found an abuse of dominance in a local bus market. In 2 Travel, the OFT had issued an infringement decision and opted not to fine the defendant as its turnover did not exceed the statutory minimum. 2 Travel distinguished Devenish on the basis that the fine in that case had been commuted in recognition of the fact that the defendant had blown the whistle on a cartel – the CAT stated that there are good policy reasons not to undermine the incentive to blow the whistle by making exemplary damages available as against those whose fines have been commuted as a matter of leniency policy. However, in 2 Travel, the defendant avoided fines only on the basis that its conduct was considered to be of minor significance and so the CAT concluded that there was no policy reason to bar an award of exemplary damages in the circumstances. The CAT’s judgment in 2 Travel notes that dominant undertakings will often be unable to predict with certainty whether or not a proposed measure would amount to an infringement and so may take many business decisions in the knowledge that there is a risk of a breach. However, the judgment clarifies that, to avoid discouraging risk taking that may ultimately be pro-competitive, dominant undertakings should only be liable for exemplary damages if the risk taken was “unacceptable,” which, in particular, entails the following:
i) Involving conduct that entails a cynical disregard for a claimant’s rights
ii) Behaving outrageously or in outrageous disregard of the claimant’s rights 188
The CAT explained that whether the risk is, in fact, “unacceptable” will, in addition, depend upon all the facts of the case, including, for example, the following:
i) Any expected pro-competitive effects of the conduct
ii) The degree and seriousness of any anti-competitive effects
iii) The motive of the undertaking for his actions
iv) The practicability of achieving the same commercial or pro-competitive aim by following a different course of action with less serious anti-competitive effects
The CAT declined to quantify the exemplary damages by reference to the penalty that might be imposed (as suggested by the defendant) and instead noted in quantifying the damages that due regard should be had to the level of compensatory damages awarded and to the economic size of the defendant. The amount actually awarded was modest (just GBP60,000) and is consistent with the typically modest size of exemplary damages awards in other English law contexts.
15. Availability of interim or final injunctions in respect of an alleged competition law infringement
Interim injunctions preventing the continuation of an infringement pending full trial of the issues may be sought from the civil courts. If necessary, the civil courts can grant an interim injunction on less than 24 hours of notice and in some cases, without even notifying the opposing party. That said, an applicant in a competition law case will generally face difficulties in persuading the court that the circumstances justify an injunction. Before granting an interim injunction, the court will generally require the applicant to give a cross-undertaking in damages to cover any loss suffered by the defendant as a result of the injunction in the event of the applicant losing the case. When seeking an interim injunction, the applicant must show that it has a “good arguable case.” The grant or refusal of an interim injunction is a matter at the court’s discretion and is assessed on the balance of convenience (American Cyanamid Co v Ethicon Limited189 – i.e., the risk of injustice to either party of granting or refusing the injunction, considering all the circumstances of the case). The court will not grant an interim injunction if damages would be an adequate remedy (i.e., the harm likely to result would be irreparable or unquantifiable) An interim injunction was awarded in Adidas v. ITF190 in relation to a claim under Article 101 and 102 TFEU, in circumstances where the applicant was able to demonstrate that without the interim injunction, it would not be able to conduct its business properly. This success should be compared with the rejected application for an injunction brought against Pfizer by eight wholesalers in 2007. 191 They requested that the implementation of new distribution arrangements be halted only a month prior to coming into force (having previously addressed their complaints to the OFT). The last minute nature of the application and the complexity of analysis required to establish whether the wholesalers had an arguable case caused the High Court to reject the application.
D. Emerging Trends
The volume of litigation in England and Wales has been increasing steadily over the past twenty years as the body of law in respect of civil claims has become more established. The broad scope for disclosure (especially as compared to other EU Member States), experienced and efficient commercial courts and, to date, relatively generous approach on jurisdiction have attracted claimants to English courts. We have already seen a number of law firms and litigation funders established in England and Wales so as to bring claims in this area and expect that these reforms are likely to galvanize such activity and increase private litigation generally so as to further grow the number of claims brought in England and Wales every year. 162 See Roche Products Limited and others v. Provimi Limited  EWHC 961; Cooper Tire & Rubber Company Europe Limited and others v. Dow Deutschland Inc and others  EWCA Civ 864; and KME Yorkshire Limited and others v. Toshiba Carrier UK Ltd  EWCA Civ 1190. 163 Note, this is the construction placed upon Article 5(3) by Case 21/76 Bier v. Mines de Potasse d’Alsace  ECR 1735. It is understood that if the claimant argues that the basis for jurisdiction is that the damage suffered occurred in that place, the claimant may only recover damage suffered within the jurisdiction (as opposed to all damage caused as a result of the infringement). 164 Sandisk Corporation v. Koninklijke Philips Electronics and others  EWHC 332 (Ch) 165 Cooper Tire and Rubber Co and others v. Shell Chemicals UK Ltd and others  EWHC 2609 (Comm), per Teare J at paragraph 65. 166 Section 32 Limitation Act 1980 167 Arcadia and others v. Visa Inc and others  EWHC 3561 (Comm) 168  EWHC 741 (Ch); decision upheld on appeal  EWCA Civ 1284 169 Judgment of the Court (Third Chamber) of 13 July 2006.Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04), Antonio Cannito v Fondiaria Sai SpA (C-296/04) and Nicolò Tricarico (C-297/04) and Pasqualina Murgolo (C-298/04) v Assitalia SpA 170 Case No. 1001/1/1/01 (15 January 2002), permission to appeal refused by both the CAT and Court of Appeal  EWCA Civ 796 171 Ibid, paragraph 109 172  EWHC 3015 (Ch) 173  UKHL 38 174 Mr. Justice Roth in respect of the Air Cargo cartel http://globalcompetitionreview.com/news/article/35737/cat-president-slams-dg-comps-failure-publish 175 Hutchison 3G UK Ltd v. Vodafone Ltd, 02 Ltd, Orange Personal Communications Services Ltd, T-Mobile UK Ltd  EWHC 50 176  EWCA Civ 50 177 See Enron Coal Services Ltd (in liquidation) v. English Welsh & Scottish Railway Limited,  CAT 36. 178  LWR 251 179  3 All ER 613 180  EWCA Civ 1086 181  EWCA Civ 637 – In this case, the House of Lords overturned the damages award on the basis that there was no breach, but did not comment on the approach to quantification taken by the Court of Appeal. 182  CAT 29 183  CAT 19 184 See paragraph 4.49 of the consultation paper. 185 2 Travel Group PLC (in liquidation) v. Cardiff City Transport Services Limited  CAT 19 186 Rookes v. Barnard  1 AC 1129 187 Devenish Nutrition Ltd v. Sanofi Aventis SA  EWHC 2394 (Ch) 188 In considering whether the defendant had knowledge as to the unlawfulness of its conduct, the CAT applied Meridian Global Funds Management Asia Ltd v. Securities Commission  1 QB 716 in ruling that the persons whose knowledge ought to be attributed to a company will depend upon the facts of the case and need not be the chairman/directors. 189  2 WLR 316 190  EWHC 1318 (Ch) 191 AAH Pharmaceutical Ltd and others v. Pfizer Ltd and another  EWHC 565 [wpdm_package id=’4322′]