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- Preliminary Material
- Preface
- Contents—Summary
- Contents—Detailed
- List of Contributors
- Tables
- Alphabetical Table of UK Cases
- Alphabetical Table of European Community Cases
- Numerical Table of European Court of Justice Cases
- Numerical Table of the General Court
- Alphabetical Table of European Court of Human Rights Cases
- Table of Non-UK National Cases
- Alphabetical Table of UK Primary Legislation
- Alphabetical Table of UK Secondary Legislation
- Table of UK Civil Procedure Rules and Practice Directions
- Table of UK Competition Appeal Tribunal Rules and Guide to Proceedings
- Table of European Union Treaties and Conventions
- Numerical Table of EC Regulations
- Numerical Table of EC Directives
- Numerical Table of EC Decisions
- Table of EC Notices
- Table of International Treaties, Conventions and Agreements
- Table of Non-UK National Legislation
- List of Abbreviations
- Main Text
- 1 Commencing Proceedings
- Preliminary Material
- Scope of chapter
- Governing principles
- A Private Actions in the High Court
- 1 Jurisdiction
- 2 Procedure for commencing claims
- Civil procedural rules
- Letter before action and Italian torpedoes
- Statements of case
- Claim form
- Particulars of claim
- Service
- Extension of time for the claim
- Acknowledgement of service and defence
- Service out of the jurisdiction
- Acknowledgement of service and disputing jurisdiction
- Time for serving a defence
- Extension of time for the defence
- Content of the defence
- Reply
- Set-off
- Counterclaims and other additional claims
- Claims for indemnity or contribution
- Further information
- Amendment to statements of case
- Discontinuance
- First case management conferences
- Split trials
- B Private Actions in the Competition Appeal Tribunal
- 1 Jurisdiction
- 2 Procedure for commencing claims
- CAT Rules and Guide
- Individual claims
- Individual claim form
- Claim for injunction relief
- Service out of the jurisdiction
- Acknowledgement of service
- Disputing the court’s jurisdiction
- Amendment to the claim
- Withdrawal of the claim
- Transfer of claims
- Defence
- Reply
- Additional parties
- Counterclaim and additional claims
- Claims for contribution or indemnity
- Further information
- Fast track procedure
- First case management conference
- Collective actions
- C Appeals to the CAT
- D Judicial Review
- 1 Judicial review in the Administrative Court
- 2 Judicial review in the CAT
- Types of judicial review proceedings
- Applications for review of merger and market investigation decisions
- Mergers
- Market investigations
- Notice of application for review
- Person aggrieved
- Time limits in the case of reviewing merger decisions
- Time for service of the defence
- Time limits in the case of reviewing market investigation decisions
- Time for service of the defence
- Powers of the CAT on an application for review
- Appeals against penalties in merger and market investigation decisions
- 3 Grounds of review
- 2 Parties and Group Litigation
- Preliminary Material
- Scope of chapter
- A Parties
- B Group Litigation
- Forms of group litigation
- 1 Representative actions in the High Court
- 2 Group litigation orders in the High Court
- 3 Collective proceedings in the CAT
- 4 Settlement of collective proceedings
- 3 Third Party Intervention
- 4 Limitation Periods
- Preliminary Material
- Scope of chapter
- A Competition Law Infringement Claims for Loss and Damage
- 1 Summary of the limitation rules
- 2 Claims in the High Court based on infringements before 9 March 2017
- 3 Claims in the CAT based on infringements before 9 March 2017
- 4 Follow-on proceedings commenced before 1 October 2015
- 5 Proceedings commenced after 1 October 2015
- 6 Claims based on infringements occurring after 8 March 2017
- B Appeals and Reviews in the CAT
- C Applications for Judicial Review in the High Court
- D Arbitration Claims
- E Equitable Relief
- 5 Jurisdiction
- Preliminary Material
- Scope of chapter
- A Legal Framework
- B Proving Jurisdiction
- C Procedure
- D EU Defendants: The Recast Judgments Regulation
- 1 Introduction
- 2 Scope of the Judgments Regulation
- 3 Submitting to the jurisdiction
- 4 Jurisdiction agreements
- 5 General rule: sue in the defendant’s domicile
- 6 Contractual claims
- 7 Tort claims
- 8 Anchor defendant
- Article 8(1) Judgment Regulation
- Connecting factor
- Jurisdiction and abuse of Article 8
- Jurisdiction and admissibility
- Jurisdiction and merits
- Anchor defendant’s participation in, or knowledge of, the cartel
- Imputation of knowledge from the subsidiary to the parent company
- Imputation of knowledge from a parent company down to the anchor subsidiary
- Contribution third party claims: Article 8(2)
- 9 Lis pendens
- 10 Service
- 11 Enforcement
- E Non-EU Defendants: Common Law Jurisdictional Rules
- 6 Applicable Law
- Preliminary Material
- Scope of chapter
- A Restrictive Conduct: The Legal Framework
- B Restrictive Conduct or after 11 January 2009: Rome II
- C Restrictive Conduct from 1 May 1996 to 10 January 2009
- D Restrictive Conduct prior to 1 May 1996
- E Contractual Claims: Rome I
- 7 Strike-Out and Summary Judgment
- Preliminary Material
- Scope of chapter
- A Summary Disposal in the High Court
- B Summary Disposal in the CAT
- C Standard of Pleading in Competition Cases
- D Examples of Successful Applications
- 8 Interim Remedies
- Preliminary Material
- Scope of chapter
- A Interim Remedies in the High Court
- 1 Interim injunctions
- Introduction
- Interim injunctions generally
- Mandatory injunctions
- Quia timet injunctions
- Freezing injunctions
- Search orders
- Anti-suit injunctions
- Interim injunctions in aid of foreign proceedings
- Procedure on applying for interim relief
- 2 Interim payments
- 3 Security for costs
- 4 Stay of proceedings
- 1 Interim injunctions
- B Interim Remedies in the Competition Appeal Tribunal
- 9 Disclosure
- Preliminary Material
- Scope of chapter
- A Disclosure in the High Court
- B Disclosure in the CAT
- CAT Rules
- 1 Disclosure in appeals and judicial review proceedings
- 2 Disclosure in damages claims
- The Rules
- Pre-action disclosure
- Disclosure at first CMC
- Directions on disclosure
- Specific disclosure
- Disclosure limited to documents in a party’s control
- Documents already referred to
- Disclosure applications by third parties
- Order for disclosure against a non-party
- Disclosure in collective proceedings for damages under section 47B
- Subsequent use of documents
- C Disclosure and Confidentiality
- 1 Identifying confidential information
- 2 Disclosure and inspection of confidential information
- Importance of a fair trial and open justice
- Non-disclosure of leniency and settlement documents
- Restriction on disclosure of documents produced during a competition authority investigation
- Disclosure of infringement decision
- Restriction on disclosing identity of complainant
- Restriction on disclosing materials supporting search warrant
- 3 Methods of restricting inspection
- 4 Redactions in judgments
- D Disclosure and Privilege
- 1 Legal professional privilege in general
- Basic principles
- An absolute right
- The right endures subsequent actions
- Parties who can claim privilege
- Communications between whom
- The extent to which a document, or part of a document, is privileged
- The extent to which copies of documents are privileged
- No privilege between claimant and defendant or between opposing parties
- Claiming privilege for documents
- 2 Legal advice privilege
- Difference between legal advice privilege and litigation privilege
- Application of Three Rivers DC v Bank of England
- Restrictive interpretation of legal advice privilege
- Restricted definition of ‘client’
- Application of this principle to partnerships
- Communications to be ‘directly related’ to the professional duty of the solicitor
- Domestic competition provision
- EU competition provisions
- Privilege during an EU Commission investigation
- 3 Litigation privilege
- 4 Joint privilege and common interest privilege
- 5 Without prejudice privilege
- 6 Privilege against self-incrimination
- The right to silence and the right against self-incrimination
- What constitutes a criminal charge, penalty, or forfeiture
- When inference may be drawn
- The right against self-incrimination in competition investigations
- Case law developments in the ECtHR
- The modern position in competition investigations: Orkem remains good law
- Application of the relevant test
- Statutory abrogation
- 7 Loss and waiver of privilege
- Privilege may be lost by waiver
- A number of different principles are confusingly referred to as waiver of privilege
- Waiver of privilege concerns use of privileged material in court
- Effect of waiver of privilege on related documents
- Material encompassed by a collateral waiver
- Circumstances in which a party may waive privilege
- Limited waiver
- Loss of privilege through inadvertence
- Loss of privilege through fraud
- 1 Legal professional privilege in general
- E Freedom of Information Act Requests
- 10 Burden and Standard of Proof
- 11 Effect of Previous Decisions
- Preliminary Material
- Scope of chapter
- A Prior Judicial Decisions
- B Prior Infringement Decisions of a Competition Authority
- 12 Factual Evidence
- Preliminary Material
- Scope of chapter
- A Factual Evidence in High Court Proceedings
- B Factual Evidence in Competition Appeal Tribunal Proceedings
- Rules governing the use of factual evidence before the CAT
- 1 Admissibility of factual evidence in the CAT
- Strict rules of evidence do not apply before the CAT
- Use of documentary evidence
- Indirect and circumstantial evidence
- Natural meaning of documents
- Contesting documents
- Reliance on witness evidence
- Reliance on responses to section 26 notices
- Reliance on notes of interviews
- Weight to be given to witness statements
- Adverse inferences from the absence of witness statements
- Relative weight of different sources of factual evidence
- Evidence from a leniency applicant
- Evidential value of those involved in settlement submissions
- 2 Fresh evidence: appeal proceedings
- Broad discretion to admit or exclude evidence
- New evidence on the part of the appellant
- Fresh evidence on the part of an intervener
- New evidence on the part of the competition authority
- Circumstances where authority may adduce new evidence
- New documents available following a request by the CAT
- Requirement to identify ‘new’ evidence applies equally to the respondent
- 3 New evidence: applications for judicial review under the Enterprise Act 2002
- 4 Fresh evidence: damages claims under section 47A of the Competition Act 1998
- 5 Factual evidence: formal requirements before the CAT
- Powers of the CAT in relation to evidence
- Time for production of factual evidence
- Witness statements
- Requirements of a witness statement
- Witness summaries
- Power to strike out part of a witness statement
- Witness summons before the CAT
- Procedure at the hearing for witnesses
- Protection of confidential information
- Challenges to the accuracy of another party’s statements
- 13 Expert Evidence
- Preliminary Material
- Scope of chapter
- A The Role and Responsibilities of Experts
- Introduction
- Effects-based analysis
- Difference between factual and expert evidence
- Issues addressed by expert evidence
- Expert evidence in the High Court
- Expert evidence in the CAT
- General duties and responsibilities of experts
- Relevant provisions in the CPR and CAT Guide
- Experts to whom these provisions apply
- Duty to assist the Court or the Tribunal
- Independence of an expert
- Conflicts
- Not every connection to a party will lead to the expert’s evidence being disregarded
- Internal experts
- Membership of the CAT
- Previous provision of privileged information to an expert by the opposing party
- Matters within field of expertise
- Need to take account of all material facts
- Continuing duty of correction
- Experts’ priority
- No immunity for experts
- B Experts: Procedural Requirements
- 1 The instructions
- 2 Permission to adduce expert evidence
- 3 Expert’s access to information
- 4 The written expert report
- Exchange or sequential service
- Role of the written report
- Formal and informal statements
- Formal requirements
- Mandatory statement of the substance of all material instructions
- Disclosure of instructions
- Privilege attaching to draft reports
- Amending an expert’s report
- Use by another party of a report that has been served
- Written questions to experts
- Appropriateness of serving written questions
- 5 Discussions after service of reports
- 6 Expert evidence at trial
- 14 References
- Preliminary Material
- Scope of chapter
- A References to the Court of Justice of the European Union
- Article 267 TFEU
- Who can make a reference
- Interpretation of the EU competition rules
- Interpretation of national competition rules
- Circumstances in which link is too remote
- Validity of Community acts
- Conflict with Article 263 TFEU
- Decision necessary for judgment
- Inadmissible references
- Generous and flexible approach to admissibility
- Mandatory references
- Discretion to refer
- Avoiding a conflict with the EU Commission/European courts
- B Procedure
- 15 Hearings
- 16 Damages
- Preliminary Material
- Scope of chapter
- A Assessment of Damages
- B Remoteness of Damage
- C Mitigation and Contributory Negligence
- D Pass-On
- E Joint and Several Liability and Contribution
- F Interest
- 17 Final Orders
- 18 Appeals to the Court of Appeal
- Preliminary Material
- Scope of chapter
- A Appeals from the High Court to the Court of Appeal
- 1 Procedure
- General rules
- Statutory basis
- Permission required
- Appellant’s Notice
- Paper application
- Respondent’s Statement of Objections
- The Respondent’s Notice and accompanying documents
- Test for permission to appeal
- Real prospect of success
- ‘Other compelling reason’
- The order granting permission
- Appeals against case management decisions
- Reasons for refusing permission
- Powers of the Court of Appeal
- 2 Grounds for appeal
- 1 Procedure
- B Appeals from the Competition Appeal Tribunal to the Court of Appeal
- C Fresh Evidence in the Court of Appeal
- D Appeals to the Supreme Court
- 19 Funding and Costs
- Preliminary Material
- Scope of chapter
- A Funding
- B Costs
- 1 The High Court
- 2 The CAT
- Controlling costs
- Assessing costs
- Orders against third parties
- C Offers to Settle
- 20 Criminal Proceedings
- Preliminary Material
- Scope of chapter
- A The Cartel Offence
- 1 Introduction to the offence
- 2 The actus reus: types of agreement to which the offence applies
- 3 Exclusions and defences—agreements on or after 1 April 2014
- 4 Dishonesty—applicable to conduct prior to 1 April 2014
- B Criminal Prosecutions for the Offence
- C Sentences Relating to the Cartel Offence
- 21 Arbitration
- Preliminary Material
- Scope of chapter
- A The Role of Arbitration in Competition Law
- B Jurisdictional Competence of Arbitrators in Relation to Competition Law Issues
- C The Practicalities of Resolving Competition Law Issues by Way of Arbitration
- D Appeals and Enforcement of Arbitral Awards
- 22 Alternative Dispute Resolution
- Preliminary Material
- Scope of chapter
- A Encouragement of ADR
- B Practical Guidance on the Stages of a Mediation Process
- 1 When to mediate and choosing a mediator
- 2 The mediation agreement
- 3 Stages in a typical mediation
- 4 Mediation confidentiality
- 5 Use of other ADR techniques
- C Voluntary Redress Schemes under the Competition Act 1998
- 23 Competition Litigation in Scotland
- Preliminary Material
- Scope of chapter
- A Commencing Proceedings
- B Parties and Group Litigation
- C Third Party Intervention
- D Limitation and Time Periods
- E Jurisdiction
- General
- Relevant rules
- Schedule 4 of the Civil Jurisdiction and Judgments Act 1982
- Schedule 8 of the Civil Jurisdiction and Judgments Act 1982
- Application of common law rules
- Forum non conveniens
- Interdict (injunction) against foreign proceedings
- Lis pendens
- Service out of jurisdiction in CAT cases
- Parallel proceedings
- F Applicable Law
- G Summary Decree and Dismissal (Strike-Out and Summary Judgment)
- H Interim Remedies
- Availability of interim remedies
- Interim interdicts (injunction)
- Assessment of the interim interdict application
- Purpose of an interdict
- Interim interdict under section 27 of the CJJA 1982
- Interim interdict in the competition law context
- Relevance of damages
- Damages for wrongful use of interdict
- Apprehended wrong outside Scotland
- Diligence on the dependence
- Assessing whether to grant a warrant for diligence on the dependence
- Warrants to enter business premises
- Caution (security for costs)
- Sist (stay of proceedings)
- Interim payment of damages
- I Disclosure
- J Burden and Standard of Proof
- K Effect of Previous Decisions
- L Factual Evidence
- M Expert Evidence
- N Hearings
- O Final Orders
- P Damages
- Q Funding and Costs
- R Appeals
- S References
- T Criminal Proceedings
- U Arbitration
- V Alternative Dispute Resolution
- 24 Competition Litigation in Northern Ireland
- Preliminary Material
- Scope of chapter
- A Commencing Proceedings
- B Parties and Group Litigation
- C Third Party Proceedings
- D Limitation and Time Periods
- E Jurisdiction
- F Applicable Law
- G Default Decree, Summary Judgment, and Strike-Out Applications
- H Interim Remedies
- I Discovery and Access to Documents
- J Burden and Standard of Proof
- K Effect of Previous Decisions
- L Factual Evidence
- M Expert Evidence
- N Hearings
- O Final Orders
- P Damages
- Q Funding and Costs
- R Appeals
- S References
- T Criminal Proceedings
- U Arbitration
- V Alternative Dispute Resolution
- 1 Commencing Proceedings
- Further Material
- [54.234.191.202]
- 54.234.191.202
