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No second bite at the cherry: CAT strikes out claim for costs as damages


The CAT has struck out a claim by the alleged object of an Article 102 / Chapter II infringement for the costs of its intervention in prior infringement proceedings.

In 2018, Ofcom found that Royal Mail had abused its dominant position in the bulk mail market. Royal Mail appealed against Ofcom’s decision to the CAT, and subsequently to the Court of Appeal. Whistl, Royal Mail’s competitor and the alleged object of the infringement, was granted permission to intervene and participated actively in both appeals, but was not awarded any of its costs.

Whistl subsequently brought a separate damages claim against Royal Mail arising out of the Ofcom decision. It included the costs of its previous interventions amongst its various pleaded heads of loss, characterising them as losses caused by the infringing conduct.

On an application by Royal Mail, however, the CAT held that Whistl’s claim fell foul of a long-standing rule of law that the costs of previous proceedings are not recoverable as damages in subsequent proceedings between the same parties: Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674. The CAT also agreed that, in any event, the claim for costs was an abuse of process: Whistl’s entitlement to costs had already been decided in the earlier proceedings, there was a public interest in the finality of litigation and Whistl was not entitled to a second bite at the cherry.

The ruling is here.

Andrew McIntyre represented Royal Mail in its strike-out application, instructed by BCLP.

Daniel Jowell KC also acts for Royal Mail in the broader damages action.