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Freshfields helps ABB reduce cartel damages after successful appeal

Freshfields Bruckhaus Deringer LLP (‘Freshfields’) has continued its successful defence of ABB in respect of a claim brought by BritNed Development Limited (‘BritNed’), the operator of the UK-Netherlands electricity interconnector cable, arising out of ABB’s participation in historic cartel conduct in the power cables sector. Following a three-day hearing in July this year, the Court of Appeal today dismissed BritNed’s seven grounds of appeal seeking further damages from ABB and allowed ABB’s cross-appeal, thereby requiring BritNed to pay back almost half of the €15m damages it was awarded at trial, against its initial claim for over €200m. The Court of Appeal also refused BritNed’s request for permission to appeal.
In the first UK appeal court judgment in a cartel follow-on damages claim, Lady Justice Asplin, Lord Justice Henderson and Lord Justice Patten  today unanimously held that, contrary to BritNed’s submissions, it was open to the trial judge in the case to conclude, having conducted a detailed assessment of the evidence in the case, that there was no deliberate overcharge in the price paid to ABB by BritNed for the interconnector. The Court of Appeal emphasised that claimants in cartel damages claims must prove, on the balance of probabilities, that the price they actually paid was too high, and that the same fundamental principles of proving loss apply in cartel damages claims as in other types of damages action.
In respect of ABB’s appeal against the award of damages in respect of so-called ‘cartel savings’, the Court of Appeal allowed ABB’s appeal and held that the award of damages on the basis of savings made by ABB rather than a loss suffered by BritNed was based on an error of law and must be set aside.  
Freshfields partner Mark Sansom commented: “We welcome the Court of Appeal’s well-considered judgment, which provides authoritative clarity that the standard for claimants to prove entitlement to competition damages should not be lower than in other types of damages claims. The judgment also reinforces that damages cannot be awarded where loss has not been proven. The clear guidance provided by the Court of Appeal will inevitably, and rightly, influence future competition damages claims.”
The team representing ABB was instructed by Dominique Speekenbrink, Senior Vice President, Head Antitrust Practice Group, ABB and comprised a counsel team of Mark Hoskins QC, Sarah Ford QC, Jennifer MacLeod and Jon Lawrence, all of Brick Court Chambers. The Freshfields competition litigation team was led by partners Mark Sansom and Nick Frey, assisted by senior associate Lara Hall and associates Natalie Puddicombe, Ramya Arnold, George Lumbers and Sophie Tang.
The team has worked closely with ABB on litigation matters arising out of the European Commission’s infringement decision relating to power cables.  

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