Court of Appeal issues landmark judgment in BritNed vs. ABB

The Court of Appeal of England and Wales today issued its first appeal court judgment in a cartel follow-on damages claim.

The Court ruled that BritNed must repay ABB approximately five million euros (excluding interest) of its original damages award of approximately 15 million euros due to the operation of a cartel in submarine power cables. BritNed, the Anglo-Dutch interconnector venture, originally sought more than 180 million euros from the Swiss engineering company. 

In its judgment, the Court of Appeal dismissed all seven of BritNed’s grounds of appeal, while allowing ABB’s cross-appeal in relation to cost savings made by ABB due to its involvement in a cartel. The Court of Appeal ruled that so-called “cartel savings” do not represent a loss to BritNed, and therefore cannot be considered compensatory in nature.  The judgment notes that “…there can be no basis for an award of damages in respect of a head [of loss] which did not arise in the particular case at all, but was a general benefit to the cartelist in its business ventures as a whole”

Zoltan Biro, a director in Frontier’s competition practice, acted as expert economic witness on behalf ABB in the first cartel follow-on damages claim to proceed to full trial and judgment in the UK. The original judgment can be viewed here

Frontier regularly provides expert testimony in commercial disputes.

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