The President of the CAT has dismissed, with costs, the first application to the fast-track procedure (“FTP”) by Claimants in a cartel follow-on damages claim, in a judgment which provides guidance to litigants as to the approach likely to be taken by the Tribunal.
The underlying claim by six foam converters arises out of the Commission settlement Decision in AT.39801- Polyurethane Foam.
The President dismissed the Claimants’ application in strong terms. He held that the submission that the complex claim could be heard in 3 days was “always unrealistic”, and rejected as “fundamentally misconceived” submissions that the FTP was appropriate for claims of a longer length if there were a number of Claimants involved. He also stated that the Claimants’ submission that follow-on damages actions should always be allocated to the FTP (absent compelling reasons to the contrary) was mistaken.
At the end of his judgment, the President took the opportunity to make a number of general comments on when the fast track procedure was appropriate for such claims. In particular, at paragraph 31, he stated as follows:
I do not wish to suggest that damages cases may not be subject to the FTP; indeed, the Guide expressly envisages that possibility. But when one is concerned with damages for a cartel, particularly where it is a cartel of several years’ duration, I think it is unlikely to come within the criteria for the FTP notwithstanding that it is a follow-on claim. There may be rare follow-on cases where such a claim could qualify: for example, where claimants were direct purchasers from cartelists and also the end consumer, so that no question of pass-through arises; or perhaps where, in a full decision the competition authority has gone some way to quantify the effect of the cartel on prices in a manner that would effectively bind the Tribunal in the damages action; or, conceivably, where the claimants have carefully circumscribed their claim to the overcharge by cartelists in the cartel period itself. But those examples are clearly very far removed from the present case.
The judgment appears here.
Jennifer MacLeod appeared for the Defendants, instructed by Freshfields Bruckhaus Deringer LLP.
She is led in the main claim by Mark Hoskins QC.