Mark Brealey, Kyla George
Edited By: Mark Brealey QC, Kyla George
- Appeals — Damages — Judicial remedies
This chapter examines the processes used to quantify damages in competition cases. It begins with a discussion of compensatory damages and the various ways that they are assessed by the courts. Compensatory damages are designed to restore the claimant to the position the claimant would have been in had the restrictive conduct not occurred. Hence, the assessment necessarily involves a hypothetical scenario known as a counterfactual. Other factors to consider in calculating damages include proof of loss and collateral benefits. The chapter proceeds by analysing the remoteness of damage, focusing on the burden of proving causation, the scope of the defendant’s liability, and contingencies. It also explains how damages may be reduced because of a failure to mitigate or through contributory negligence, before concluding with an overview of the issue of pass-on, the principle of joint and several liability for the damage, and contribution proceedings.