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Competition Litigation - UK Practice and Procedure, 2nd Edition edited by Brealey QC, Mark; George, Kyla (11th July 2019)

10 Burden and Standard of Proof

Mark Brealey, Kyla George

From: Competition Litigation: UK Practice and Procedure (2nd Edition)

Edited By: Mark Brealey QC, Kyla George

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 28 January 2020

Subject(s):
Appeals — Burden and standard of proof — Judicial remedies

(p. 309) 10  Burden and Standard of Proof

Scope of chapter

Issues of burden and standard of proof often arise in competition proceedings. The rules differ as between civil claims, criminal cases, and appeals to the CAT against infringement decisions. After some brief observations on terminology in Section A, this chapter considers each category in turn: civil claims are considered in Section B, criminal cases in Section C, and appeals to the CAT against infringement decisions in Section D.

A.  Terminology

‘Burden’

10.01  The party who is required to demonstrate the existence of certain facts to a court or tribunal is said to bear the ‘burden of proof’. The basic principle is ‘he who asserts must prove’.1

‘Legal burden’

10.02  The ‘legal burden’ is also known as the ‘persuasive burden’. It is the requirement that a party prove facts to a certain standard in order to satisfy the tribunal of the claim (or issue) at the end of the hearing. Unless satisfied, that party loses. For example, in a claim for damages for breach of section 18 of the Competition Act 1998, a legal burden rests on the claimant to satisfy the court (p. 310) on the balance of probabilities of the occurrence of the events upon which the allegation of abuse of dominance is founded.

‘Evidential burden’

10.03  The ‘evidential burden’ arises at an earlier stage. It determines whether an issue should be left to the trier of fact. It is a requirement merely to adduce sufficient prima facie evidence to raise an issue as to a particular fact. For example, if an undertaking is seeking to justify certain conduct that is alleged to be anti-competitive, that undertaking will at the least bear an evidential burden. As the CJEU stated in Aalborg Portland v Commission:

Although … the legal burden of proof is borne either by the Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged.2

‘Standard’

10.04  The phrase ‘standard of proof’ describes the degree to which the tribunal must be satisfied of facts. There are just two standards of proof in English law:

  1. (a)  Proof on the ‘preponderance of probability’ or the ‘balance of probability’. This is the usual standard in civil cases. It means ‘more likely than not’.3

  2. (b)  Proof ‘beyond all reasonable doubt’. This is the usual standard in criminal cases. It is equated with making the jury ‘sure’ of the defendant’s guilt.

B.  Civil Claims

1.  Burden of proof and presumptions

Restrictive agreements

10.05  Article 2 of EU Regulation 1/20034 places the legal burden of proof on the claimant who is asserting that a decision, agreement, or concerted practice infringes Article 101(1) TFEU: ‘In any national or Community proceedings for the application of Articles [101] … of the Treaty, the burden of proving an infringement of Article [101](1) … of the Treaty shall rest on the party or the authority alleging the infringement.’ Recital 5 explains the rationale, which is to ‘ensure an effective enforcement of the Community competition rules and at the same time the respect of the fundamental rights of defence’.

Exemption

(p. 311) 10.06  Article 2 of Regulation 1/2003 further provides: ‘The undertaking or association of undertakings claiming the benefit of Article [101](3) of the Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled.’ Consequently, the burden of proving the four conditions for exemption lies on the party claiming exemption.

Section 9(2) of the Competition Act 1998 is to similar effect: ‘In any proceedings in which it is alleged that the Chapter I prohibition is being or has been infringed by an agreement, any undertaking or association of undertakings claiming the benefit of subsection (1) shall bear the burden of proving that the conditions of that subsection are satisfied.’

A party that alleges that a restrictive agreement is objectively justified bears the legal burden.5

Damages and exemption

10.07  The burden of proving loss occasioned by a breach of the competition rules lies on the claimant. In the case of loss suffered as a result of a restrictive agreement, this burden relates to proving that the prohibition contained in Article 101(1) or the Chapter 1 prohibition is breached. In a damages claim, if an issue arises as to whether the agreement would be exempted, the burden does not lie on the claimant to negate an exemption (or any exemptible level of a price). In other words, the burden of proving loss does not extend to proving that the agreement cannot be exempted. As the Court of Appeal stated in Sainsbury’s Supermarkets v MasterCard Incorporated, this would be contrary to the principle of effective enforcement of the competition rules as it would place too heavy a burden of proving a complex negative on the claimant.6

Abuse of a dominant position

10.08  Article 2 of Regulation 1/2003 also places the legal burden of proving an abuse of a dominant position on the claimant who is asserting a breach of Article 102 TFEU. However, the allegedly dominant undertaking bears an evidential burden as to any objective justification alleged by it to justify its conduct. Thus, although the claimant bears the legal burden of proving a breach of Article 102 it is incumbent on the allegedly dominant undertaking to raise any plea of objective justification and to support it with evidence.7

Passing-on defence

10.09  An overcharge arises when the price paid exceeds the price that would have been paid in the absence of the infringement. An underpayment (p. 312) arises where the price actually paid is less than would have been paid in the absence of the infringement.8 Where a claim is made in respect of loss or damage caused by an overcharge or underpayment, and the defendant claims that the claimant passed on the overcharge or underpayment to another person, the defendant has the burden of proving that the claimant passed on all or part of the overcharge or underpayment.9

Offensive pass-on: indirect purchasers

10.10  Indirect purchasers are those who have acquired goods or services from direct purchasers, the latter being those who dealt directly with the infringers. Just as a direct purchaser bears the burden of proving an overcharge or underpayment, so does an indirect purchaser. The indirect purchaser must prove that it has suffered loss by virtue of the direct purchaser passing on the overcharge or underpayment. Indirect purchasers are however apt to face difficulties in proving indirect pass-on as often they will not have access to the direct purchaser’s costs and business strategy (for example, whether the direct purchaser operates on a plus pricing model). To overcome these difficulties, Part 2 of Schedule 8A Competition Act 1998 modifies the burden of proof as to offensive pass-on.10

Where a claim is made in respect of loss or damage caused directly or indirectly by an overcharge, paragraph 9(2) of Schedule 8A Competition Act 1998 provides that a claimant is considered to have proven that the overcharge was passed on to the claimant if the claimant proves that:

  1. (a)  The defendant infringed competition law,

  2. (b)  As a result of the infringement there was an overcharge when the product or service was directly acquired from the defendant, and

  3. (c)  The claimant subsequently acquired that product or service, or a product or service derived from or containing the product or service.

Once these facts are established, the burden of proof is reversed and the defendant must prove that the overcharge, or part of it, was not passed on to the claimant.

Proof of infringement

10.11  By virtue of section 58A(2)–(3) of the Competition Act 1998, an infringement decision of the CMA or of the CAT (on appeal from the CMA) is binding on the High Court or the CAT once the decision becomes final, namely, once the appeal process has been exhausted.11 Further, by virtue of section 58 (p. 313) of the Act a finding of fact by the CMA which is relevant to an infringement decision is binding on the parties once the appeal process has been exhausted, unless the court of the CAT directs otherwise.

By virtue of section 58A(2) and (4) of the Competition Act 1998, an infringement decision of the EU Commission is binding on the court or the CAT once the decision becomes final, namely, once the appeal process has been exhausted. Notwithstanding the provision of the Competition Act, as a matter of EU law an infringement decision by the European Commission in binding on the addressee, notwithstanding any pending appeal.12 Further, by virtue of Article 16 of Regulation (EC) 1/2003 national courts are required to give effect to EC Commission decisions, which are presumed valid from the date they are adopted.13 Where there is an appeal outstanding either before the General Court or the CJEU, the High Court or the CAT will stay proceedings pending the outcome of the appeal in the European courts. This is to ensure the uniform application of infringement decision. The question of when to stay proceedings, however, is a matter for case management by the domestic tribunal.14

More generally, infringement decisions by national competition authorities constitute conclusive proof of infringement in an action for damages brought in their courts.15 Furthermore, final infringement decisions adopted by national competition authorities (or review courts) constitute prima facie evidence of infringement in actions for damages commenced in other Member States.16

Market dominance

10.12  A presumption of dominance arises from evidence of high market shares. In Hoffmann-La Roche v Commission,17 the CJEU held that ‘although the importance of the market shares may vary from one market to another the view may legitimately be taken that very large shares are in themselves, and save in exceptional circumstances, evidence of the existence of a dominant position’. Lesser market shares generate a weaker presumption. According to AKZO,18 proving a market share of 50% is generally sufficient to shift the burden onto the defendant to disprove dominance.19

Abusive predatory pricing

(p. 314) 10.13  Where prices are below average variable cost, predation is presumed. Where prices are above average variable cost but below average total cost, they will be regarded as abusive if they are part of a plan which is aimed at eliminating a competitor.20 In Arkin v Borchard Lines Colman J explained that this should not be understood as displacing the need to prove abusive or eliminatory intent in cases where the price is below average variable cost.21 It is simply that where the price is below average variable cost, the burden of proof shifts to the dominant undertaking to disprove eliminatory intent.

Collusion

10.14  Consensus as to anti-competitive conduct may be presumed where an undertaking participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them. The evidential burden then shifts to the undertaking to adduce evidence to establish that its participation in such meetings was without any anti-competitive intention such as by demonstrating that it had indicated to its competitors that it was participating in the meetings in a spirit different from theirs.22

Presumption of loss and damage

10.15  In competition proceedings for loss and damage in respect of infringements occurring on or after 9 March 2017, there is a rebuttable presumption that cartels cause harm. Schedule 8A paragraph 13 of the Competition Act 1998 provides: ‘For the purposes of competition proceedings, it is to be presumed, unless the contrary is proved, that a cartel causes loss or damage.’

Thus, there is a presumption that a cartel will have led to some price increase, and thus an overcharge, although it remains for the claimant to quantify the actual overcharge. This presumption is limited to cartels by virtue of their secret nature and the information asymmetry which makes it difficult for claimants to obtain the necessary evidence to prove harm.

2.  Standard of proof

Balance of probability

10.16  Courts do not have to determine whether facts in issue are definitely true. They need merely to be satisfied to the applicable standard. The standard of proof in civil claims is proof on the balance of probability. As Lord Hoffmann stated in Re B:

(p. 315)

I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.23

A significant amount of case law had been generated on the topic of the correct standard of proof in civil claims. Confusion resulted from a line of authority beginning with Bater v Bater, a short judgment in which Denning LJ suggested that ‘there may be degrees of probability’ within the standard described as ‘a preponderance of probability’.24 In Hornal v Neuberger Products Ltd25 the Court of Appeal indicated that ‘the more serious the allegation the higher the degree of probability that is required’. This line of authority was followed by in Shearson Lehman Hutton v Maclaine Watson & Co Ltd,26 where Webster J noted that Article 101 of the EC Treaty carried with it a liability to penalties and concluded that the appropriate standard of proof was not the usual civil standard, but rather ‘a high degree of probability, but less than the standard of proof in criminal matters’. The Irish High Court disagreed shortly afterwards in Masterfoods Ltd v HB Ice Cream Ltd27 where Keane J held that the gravity of the allegation did not affect the fact that the standard applicable was proof on the balance of probabilities. The Irish approach is now accepted in England and Wales too.

Standard of proof and quality of evidence

10.17  In Re H (minors),28 Lord Nicholls distinguished between the standard of proof and the quality of evidence likely to satisfy it:

Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle … The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof (p. 316) required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

Lord Nicholls’ approach in Re H was referred to in a competition law context in Chester City Council v Arriva plc29 and Purple Parking Ltd v Heathrow Airport Ltd,30 albeit that in both judgments the approach was questioned. In Chester, Rimer J, while expressing ‘a personal difficulty’ in understanding why more serious consequences should affect the quality of evidence required, held that he would ‘only find the case proved if it is supported by strong and compelling evidence’, being the quality of evidence required by the CAT in appeals against infringement decisions (discussed presently).

The distinction between the standard of proof and the quality of the evidence required to meet that standard was endorsed in the case of exemption under Article 101(3) by the Court of Appeal in Sainsbury’s Supermarkets Ltd v MasterCard Incorporated.31 The defendant payment card schemes accepted that the legal burden was on them to prove the four conditions for exemption, but contended that the requirement to produce robust and compelling analysis and data rather than mere assumptions and theory conflicted with the standard of proving exemption on a balance of probability. The schemes argued that any evidence should suffice provided it met the civil standard. The Court of Appeal disagreed:

We consider that Phillips J was right and regard should be had to the requirement of the Commission and the CJEU for cogent and convincing arguments and evidence (see GlaxoSmithKline Services v Commission [2006] ECR II- 2969 … at [235] which was applied and followed in the General Court’s decision in MasterCard at [196]) …

Although the standard of proof is a matter of English law, the nature of the evidence which will satisfy that standard must be informed by EU law and Commission decisional practice, ultimately whether a party is entitled to exemption involves the application of a European treaty. Furthermore, in that context, it is important to maintain a consistency of approach across Member States as to the requirements of article 101(3) …

We also reject the suggestion that requiring cogent evidence based on facts and empirical data and analysis rather than economic theory would mean that the standard of proof required of the schemes would be impossible to meet.

(p. 317) C.  Criminal Cases

1.  Burden of proof

Presumption of innocence

10.18  ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to … any statutory exception … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’32 The presumption of innocence is nowadays also enshrined in Article 6(2) ECHR, which provides: ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ These principles are equally applicable to competition offences.

Reversing the burden

10.19  Article 6(2) has generated several domestic judgments relating to the phrase in Viscount Sankey’s opinion, ‘subject also to any statutory exception’. ‘Reverse onus provisions’ is the usual description for statutory provisions which place a burden of proof on defendants in criminal proceedings.

The basic principle established by the European Court of Human Rights (‘ECtHR’) is that presumptions of fact or of law provided for in the criminal law must be confined within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.33 Pursuant to section 3 of the Human Rights Act 1998, primary and subordinate legislation must be read and given effect in a way which is compatible with ECHR rights, and this includes reverse onus provisions. The leading cases include R v Lambert,34 Sheldrake v DPP,35 and R v Chargot Ltd.36 Reverse onus provisions will often be construed as placing only an evidential burden on the accused, but that may not always be possible or appropriate. It has been held that the justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.37

Cartel offence38

10.20  Since the coming into force of section 47 of the Enterprise and Regulatory Reform Act 2013, there is no longer a requirement to prove dishonesty in relation to agreements or arrangements which fall under section (p. 318) 188(1) of the Enterprise Act 2002.39 Further, section 188B provides a number of defences to the commission of the cartel offence based on the defendant’s intention.

2.  Standard of proof

Beyond reasonable doubt

10.21  It is for the prosecution to prove the case ‘beyond reasonable doubt’. There is extensive case law on the meaning of this phrase, much of which stresses that a judge directing a jury should be reluctant to provide any gloss. The standard of proof is designed to ensure that the jury is sure of the guilt of the accused. The Judicial College’s guidance to judges is:40

the prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty. It is unwise to elaborate on the standard of proof … although if an advocate has referred to ‘beyond reasonable doubt’, the jury should be told that this means the same thing as being sure. If the jury ask for clarification of the standards, their question should be answered as shortly as possible.

Where there is a legal (persuasive) burden rather than an evidential burden on the defendant to establish a defence, it must be satisfied on the balance of probabilities. In this case, the Judicial College’s guidance states:

In cases in which the defence bears the legal burden of proof, it is to the civil standard: D has to show that it is more likely than not.

D.  Appeals to the CAT against Infringement Decisions

1.  Burden of proof

Criminal nature of the appeal proceedings

10.22  The ECtHR adopts an autonomous definition of ‘criminal charge’ in relation to Article 6 ECHR. Relevant (but not determinative) criteria include the classification of the proceedings in domestic law, the nature of the offence, and the nature and degree of severity of the penalty that the person concerned risks incurring.41 In A Menarini Diagnostics SRL v Italy,42 the ECtHR held that the imposition by the Italian Competition Authority of a fine of €6 million for anticompetitive practices (which was argued to be an administrative sanction) had a sufficiently penal character to fall within (p. 319) Article 6. In Société Stenuit v France43 the ECtHR considered that the decision of the French Minister of the Economy and Finance when imposing a fine for breach of competition law following consultation with the French Competition Commission arguably constituted the ‘determination of a criminal charge’. In Napp Pharmaceutical Holdings v DGFT44 the CAT agreed with the parties that proceedings under the prohibitions imposed by the Competition Act 1998 which could lead to a penalty under section 36 involved a ‘criminal charge’ or a ‘criminal offence’ for the purposes of Article 6.

Legal burden of proof remains on the CMA

10.23  Notwithstanding that the appeal to the CAT against the infringement decision is by the undertaking and therefore the appellant will usually open the appeal,45 the legal burden of proving the infringement remains on the competition authority. In Napp46 the CAT considered that, as the appeal proceedings were ‘criminal’ for the purposes of Article 6, the legal burden of proof rested on the competition authority to prove the infringement, and the appellant was accordingly entitled to the presumption of innocence. However, this did not prevent the regulator from relying on inferences or presumptions that would, in the absence of countervailing indications, normally flow from a given set of facts.

The person who alleges objective justification bears the legal burden. In appeals against infringement decisions the CMA bears an evidential burden of proving that there were alternative measures available (and hence that a selective distribution policy is not justified), but the person asserting objective justification must prove it. Thus, although normally the CMA would bear the legal burden of proving ‘each of the analytical steps’ of an infringement, he who asserts must prove, and therefore in the case of Ping v CMA it was Ping who bore the legal burden of proving that its online sales ban was justified.47

2.  Standard of proof

Normal civil standard applies

10.24  In Napp48 the CAT noted that neither Article 6 nor the Human Rights Act 1998 lays down a particular standard of proof that must be applied in proceedings to which Article 6(2) or 6(3) applies. The CAT considered that the usual standard of balance of probabilities applied in appeal (p. 320) proceedings, as infringements of the Chapter I and Chapter II prohibitions imposed by sections 2 and 18 of the 1998 Act are not classified as criminal offences in domestic law, penalties are recoverable as civil debts (section 37(1)), and directions are enforceable by civil proceedings (section 34). Moreover, as a matter of practicality, the civil standard was considered more appropriate in relation to the complex economic matters which invariably have to be considered in such cases.

Strong and compelling evidence

10.25  Although the CAT in Napp considered that the normal standard of proof would apply, it indicated that the quality of the evidence adduced to prove a breach would be carefully scrutinized. The CAT held that given the serious nature of the matters being considered, ‘strong and compelling evidence’ would be needed to meet that standard.

In Claymore Dairies v OFT49 the CAT emphasized that the reference in Napp to ‘strong and compelling evidence’ did not mean that, in order to establish a Chapter I infringement, the OFT had to rely on written or documentary evidence. Oral evidence could suffice in appropriate cases. The CAT went further in JJB Sports, stating that even a single item of evidence, or wholly circumstantial evidence, may be enough.50 Contemporaneous documents will be accorded weight unless there is a good reason to the contrary.51 Where the CMA infers an agreement or concerted practice from a number of coincidences, the CAT must consider whether the evidence before it provides a ‘plausible explanation’ for the events other than collusion.52

Where on appeal crucial facts are disputed, it may in certain cases be very difficult to resolve the issues in the absence of evidence from a witness whose assertions are available to be tested in cross-examination by those who dispute them. Even if the CMA has not obtained witness statements in order to fortify its own decision-making process, once it becomes clear that there is a material dispute as to the facts on which its decision was based, the CMA should consider to what extent such statements are necessary or desirable in order to support those facts in an appeal.53

As a matter of EU law at least, it should be noted that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by another, cannot be regarded as constituting adequate proof that the latter has committed the infringement, until the admission is corroborated by other evidence.54

(p. 321) 3.  Presumption of innocence

Article 6(2) ECHR applies

10.26  As an infringement of the competition rules risks the imposition of a financial penalty, an undertaking which appeals an infringement decision and the imposition of any penalty is entitled to the presumption of innocence. This was established by the CAT in Napp (see paragraph 10.22). The law on the burden and standard of proof and the presumption of innocence was summarized by the CAT in Flynn Pharma Ltd & Pfizer v CMA:55

The legal burden of establishing an infringement of Article 102 and Chapter II CA 98 is on the CMA and the standard of proof is the civil standard of the balance of probabilities. We must also take account of the presumption of innocence under article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to which Pfizer and Flynn are entitled in a case such as this involving alleged infringements of the CA 98 that may result in the imposition of financial penalties. That presumption is also a general principle of EU law under Article 48(1) of the Charter of Fundamental Rights of the European Union.

Footnotes:

1  Potato Marketing Board v Robertsons, County Court (Oxford) 8 September 1982, [1983] 1 CMLR 93, para 11; Sainsbury’s Supermarkets Ltd v MasterCard Incorporated [2018] EWCA 1536 (Civ) at para 317.

2  Case C-204/00P Aalborg Portland v Commission [2004] ECR I-123; ECLI:EU:C:2004:6, para 79. See also Bookmakers’ Afternoon Greyhound Services Ltd v Amalgamated Racing Ltd [2008] EWHC 1978 (Ch); [2009] UKCLR 547, paras 392–393 (upheld on appeal, [2009] EWCA Civ 750; [2009] UKCLR 863).

3  Home Secretary v Rehman [2001] UKHL 47; [2003] 1 AC 153, para 55, per Lord Hoffmann.

4  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81] and [82] of the Treaty, [2003] OJ L1/1.

5  Sainsbury’s Supermarkets Ltd v MasterCard Incorporated [2018] EWCA 1536 (Civ), and the case of Ping v CMA [2018] CAT 13, at 107, referred to at para 10.23.

6  Sainsbury’s Supermarkets Ltd v MasterCard Incorporated [2018] EWCA 1536 (Civ) at para 317.

7  Case T-321/05 AstraZeneca v Commission [2010] ECR II-2805; ECLI:EU:T:2010:266, para 686. Case T-201/04 Microsoft v Commission [2007] ECR II-3601; ECLI:EU:T:2007:289, para [688]. Genzyme Ltd v Office of Fair Trading [2004] CAT 4; [2004] Comp AR 358, paras 576–579. Case C-204/00P Aalborg Portland v Commission [2004] ECR I-123; ECLI:EU:C:2004:6, para 79. Bookmakers’ Afternoon Greyhound Services Ltd v Amalgamated Racing Ltd [2008] EWHC 1978 (Ch); [2009] UKCLR 547.

8  Competition Act 1998, Schedule 8A, para 8 (inserted by the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act and other Enactments (Amendment)) Regulations 2017. See Chapter 16, Damages, section D.

9  Sainsbury’s Supermarkets Ltd v MasterCard Incorporated [2018] EWCA 1536 (Civ), at para 324; Competition Act 1998, Schedule 8A, para 11.

10  Schedule 8A, Part 2. By virtue of Part 10 of Schedule 8A, Part 2 only applies to pass-on claims arising in claims for loss or damage suffered on or after 9 March 2017 and as a result of infringements taking place on or after 9 March 2017.

11  See Chapter 11, ‘Effect of Previous Decisions’; also Enron Coal Services Ltd v English Welsh & Scottish Railway Ltd [2011] EWCA Civ 2; [2011] UKCLR 303.

12  Regulation 1/2003/EC, Art 16. See Deutsche Bahn AG v Morgan Advanced Materials plc [2014] UKSC 24; [2014] 2 All ER 785.

13  Case C-344/98 Masterfoods [2000] ECR I-11369, para 53; ECLI:EU:C:2000:689.

14  See National Grid Electricity Transmission plc v ABB Ltd and ors [2009] EWHC 1326 (Ch); [2009] UKCLR 838.

15  Directive 2014/104/EU, Art 9.1.

16  Competition Act 1998, Schedule 8A, para 35.

17  Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461; ECLI:EU:C:1979:36, para 41.

18  Case C-62/86 AKZO v Commission [1991] ECR I-3359; ECLI:EU:C:1991:286, para 60.

19  For the approach of the CMA (which adopted the OFT’s original guidance), see OFT 415 (2004), para 2.12.

20  Case C-62/86 AKZO v Commission [1991] ECR I-3359; ECLI:EU:C:1991:286, paras 71–72. Case C-333/94P Tetra Pak International SA v Commission [1996] ECR I-5951; ECLI:EU:C:1996:436.

21  [2003] EWHC 687 (Comm); [2003] 2 Lloyd’s Rep. 225, para 229.

22  Case C-204/00P Aalborg Portland v Commission [2004] ECR I-123; ECLI:EU:C:2004:6, para 81.

23  Re B [2008] UKHL 35; [2009] 1 AC 11, para 12: see also Canada Supreme Court in FH v McDougall [2008] SCC 53; [2008] 3 SCR 41, para 40, per Rothstein J: ‘Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof.’

24  [1951] 2 All ER 458.

25  [1957] 1 QB 247, 258, per Denning LJ.

26  [1989] 3 CMLR 429 at 443, para 284.

27  [1992] 3 CMLR 830, paras 130–131.

28  [1996] AC 563 at 586.

29  [2007] EWHC 1373 (Ch); [2007] UKCLR 1582, para 10; see also Safeway Stores Ltd & Ors v Twigger & Ors [2010] EWHC 11; [2010] 3 All ER 577, para 33.

30  [2011] EWHC 987 (Ch); [2011] UKCLR 492, para 185.

31  Sainsbury’s Supermarkets Ltd v MasterCard Incorporated [2018] EWCA 1536 (Civ) at [80]–[81]: see also Martin Retail Group Ltd v Crawley Borough Council [2013] EW Misc 32 (CC) [2014] L&TR 17, at 32, where His Honour Judge Dight emphasized that an exemption should be proved by ‘admissible evidence’ and not subjective opinion evidence.

32  Woolmington v DPP [1935] AC 462, 481–2, per Viscount Sankey LC.

33  Salabiaku v France (1988) 13 EHRR 379, para 28.

34  [2001] UKHL 37; [2002] 2 AC 545.

35  [2004] UKHL 43; [2005] 1 AC 264.

36  [2008] UKHL 73; [2009] 1 WLR 1.

37  Sheldrake [2004] UKHL 43; [2005] 1 AC 264, para [21], per Lord Bingham.

38  See Chapter 20, Criminal Proceedings.

39  From 1 April 2014 (see The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014, Article 1). In relation to conduct prior to 1 April 2014, the original form of the offence will continue to apply.

40  Crown Court Compendium (December 2018), Part I, ch 5.

41  See Engel v The Netherlands (1976) 1 EHRR 647, paras 80–85.

42  Case no 43509/08, judgment of 27 September 2011 (<www.echr.coe.int/Documents/CLIN_2011_09_144_ENG_894208.pdf>, pp 9–10).

43  Decision of the European Commission of Human Rights on admissibility, 11 July 1989. The applicant withdrew its case and so its substance was not considered by the ECtHR in its subsequent judgment: (1992) 14 EHRR 509.

44  [2002] CAT 1; [2002] Comp AR 13 at paras 93–97, following Case C-235/92P Montecatini v Commission [1999] ECR I-4539; ECLI:EU:C:1999:362, paras 175–176.

45  Tesco v OFT [2012] CAT 9; [2012] Comp AR 208.

46  Napp Pharmaceutical Holdings v DGFT [2002] CAT 1; [2002] Comp AR 13, paras 110–112. See also Genzyme v OFT [2004] CAT 4; [2004] Comp AR 358, para 148.

47  [2018] CAT 13, at 107.

48  Ibid, paras 102–109.

49  [2003] CAT 18; [2004] Comp AR 177, para 8.

50  JJB Sports plc v OFT [2004] CAT 17; [2005] Comp AR 29, para 206.

51  Argos v OFT [2004] CAT 24; [2005] Comp AR 588, para 312.

52  Makers UK Ltd v OFT [2007] CAT 11; [2007] Comp AR 699.

53  AH Willis and Sons Ltd v OFT [2011] CAT 13; [2011] Comp AR 267, para 68. Flynn Pharma Ltd & Pfizer v CMA [2018] CAT11 at 80–82: see Chapter 12, Factual Evidence.

54  Cases T-67/00, etc JFE Engineering Corp v Commission [2004] ECR II-2501; ECLI:EU:T:2004:221, para 219.

55  [2018] CAT 11, at 92.