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Freshfields helps ABB limit pay-out in first cartel damages judgment in the English courts

Freshfields Bruckhaus Deringer LLP (‘Freshfields’) has defended ABB in a claim brought by BritNed Development Limited (‘BritNed’), the operator of the UK-Netherlands electricity interconnector cable, in the first follow-on damages claim to reach judgment in an English court. BritNed claimed in excess of €180 million in damages from ABB following ABB’s participation in historic cartel conduct in the power cables sector. Following a five-week trial in the High Court of England and Wales in February this year, the Court today awarded BritNed only a small portion of the damages claimed against ABB. The Court rejected BritNed’s quantification of its alleged losses and dismissed its claim for lost profits and compound interest.

In today’s landmark judgment, Mr Justice Marcus Smith found that there was no deliberate overcharge in respect of the price of the electricity interconnector cable, which ABB contracted to supply to BritNed in 2007. The Court found that ABB’s price for the supply of the interconnector was “honestly and competently compiled with a view to putting forward a competitive bid”.

The judgment is also the first time a UK Court has ruled in a cartel damages claim on the approach to expert economic analysis deployed in such cases.  The Court supported the approach of ABB’s expert economist witness, Zoltan Biro of Frontier Economics, whose preferred methodology was based on factual evidence and actual cost data rather than more complex regression techniques and proxies.
Partner Mark Sansom of Freshfields commented: “Today’s judgment is an important one and is a testament to ABB’s determination to ensure the facts of this claim did not get lost against the background of a broad infringement finding by the European Commission. Not every competition law breach leads to customers being deliberately overcharged, or provides good grounds for the massive claims that are routinely asserted.  The facts of individual cases really matter, as today’s ruling shows.  The judgment also provides useful guidance on the use of expert economic analysis in competition cases, including the importance of rooting economic evidence in the factual reality.”

The team representing ABB was instructed by Dominique Speekenbrink and Mihaela Nistor of ABB and comprised a counsel team of Mark Hoskins QC, Sarah Ford QC, Jennifer MacLeod and Jon Lawrence, all of Brick Court Chambers, and the Freshfields competition litigation team led by partners Mark Sansom and Nick Frey, assisted by the associate team of Lara Hall, Natalie Puddicombe, Ramya Arnold and George Lumbers.

Important consequential issues, including in relation to costs, will be dealt with at a forthcoming hearing.  Freshfields is also continuing to work with ABB on its defence of other damages actions following on from the power cables cartel.


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