BritNed Development Limited v ABB AB, ABB Limited [2018] EWHC 3142 (Ch)



Judge: Marcus Smith J.

Citation: [2018] EWHC 3142 (Ch)

Summary:

The Court considered the question of who the successful party was in a competition claim. The judge rejected the analysis that the party writing the cheque for damages was necessarily the loser for costs purposes. Nor did the existence of a withdrawn Part 36 offer affect the balance of costs. In the circumstances, it was appropriate for the parties to bear their own costs.

Longer Text:

The Court gave Judgment on a claim for damages arising out of a restriction of competition contrary to the Treaty on the Functioning of the European Union (“TFEU”) Preamble, Article 101.  The Court held that the Claimant had sustained losses as a result of the operation of a cartel and was entitled to damages.  In a subsequent Judgment, the Court dealt with the question of costs.  The Claimant submitted that the party who writes the cheque at the end of the day is the unsuccessful party and the party receiving the cheque is the successful party.  Marcus Smith J stated:

“4. I confess that I am not sure that the definition of success is so easy a concept, at least in this case.  In this case, there was, from the outset, a binding finding against ABB.  I refer to the Commission’s decision which found the existing existence of the cartel which found that ABB was party to that cartel and which found that the BritNed Interconnector was a cartelised project pursuant to that cartel.  In a very real sense, therefore, quantum was substantially the only issue before the Court. 

Absent one of the two factors that I list below, it was, one might well say, inevitable that ABB would be writing a cheque to BritNed.  It does not, therefore, axiomatically follow that simply because a payment was ordered in this case, that ABB was the loser.

The two factors were, first, that it was open to the Court to find there was no overcharge and no loss to BritNed at all (a contention which failed), although the outcome of the litigation in monetary terms was closer to ABB’s case than to BritNed’s.  the second factor was the existence of a Part 36 offer.  ABB had made a Part 36 offer which was withdrawn after trial but before Judgment.  The existence of the offer was no more than a factor to be taken into account in the Court’s decision as to costs.  The Judge continued:

12.  In terms of who writes the cheque, it is clear… that BritNed is the winner.  Against this, however, a number of points must be noted: 

  1. In terms of expectation, BritNed was substantially the loser in this case when measured by reference to its own Part 36 offer of €135m. BritNed recovered under 10% of this amount…
  2. What is more, ABB made an offer, which remained open throughout the trial, that BritNed failed to beat. 
  3. The case on overcharge advanced by BritNed substantially failed…
  4. It was a consequence of the failure, in relative terms, of BritNed’s overcharge claim that the lost profit claim failed.  So far as the regulatory cap issue was concerned, it might have to be said that that was something of a score draw for the parties.  On the fourth issue, BritNed lost on the compound interest claim, but in terms of the time spent, this was a relatively minor issue.

The Court went on to reject making an issues-based costs order.  The overcharge claim had been central to BritNed’s case and their analysis was not accepted, whereas ABB’s analysis was.  The Court indicated that if it were to award BritNed its costs, it would be on the basis of a discount of 40% to reflect the relative failure on the overcharge claim.  The Court also had to take into account the withdrawn Part 36 offer, and concluded that the existence of the offer was not enough, when quantification was so difficult, to reverse the incidence of costs.  Accordingly, ABB was not awarded its costs, but the Court considered that the making of a commercial offer early on that was not beaten by BritNed meant that it would be unjust for ABB to pay any of BritNed’s costs.  Each party had to bear its own costs.

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