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CAT rejects disclosure application and directs use of UK overcharge calculation as a proxy for international markets


In the second wave of the Trucks proceedings, claims are made in respect of trucks and truck-related services supplied in the UK and in other European markets.  The claimants contend that they paid an overcharge on these trucks and services.

Several groups of claimants applied to the Tribunal for disclosure of data, expert reports and other materials from non-UK jurisdictions.  The reason given was to facilitate an expert economic analysis of overcharge to be carried out for the French and German markets, to accompany the estimate of any overcharge that is already being carried out by the parties for the UK.  It was said that the expert calculations of overcharge for France and Germany could be used for those markets, and would then also be informative for assessing the existence and extent of any overcharge in other European markets.  In the alternative, the claimants contended that if the UK overcharge calculation was to be used as a proxy for foreign markets, it should be open to them to argue for adjustments to be made to that figure for different markets. 

The defendant truck manufacturers largely opposed this application. 

In a judgment delivered today, the Tribunal has rejected the claimants’ application and directed that the estimate of any overcharge for the UK was to be used, without adjustment, for all other markets.  The Tribunal found that the proposed disclosure and economic analysis would  involve cost and complexity that would be disproportionate to any incremental benefit on the facts of this case.  It noted also that the Claimants’ expert had indicated that she may not complete the analysis of overcharge for France and Germany if it was ‘unhelpful’ and that this had given rise to a concern from the Defendants that the expert might not complete the analysis if it was commercially unhelpful to the clients (i.e. that it appeared that the analysis would lead to a lower estimate than the UK figure). The Tribunal held that the claimants had under-estimated the difficulties that would arise from addressing this concern.  It held also that allowing any ‘adjustment’ to the UK overcharge figure was unlikely to be practical in this case.

The Tribunal’s judgment is here.

Hugo Leith (instructed by Freshfields Bruckhaus Deringer LLP) appeared for Volvo / Renault

Matthew Kennedy (instructed by Herbert Smith Freehills LLP) appeared for Iveco