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Tribunal orders defendants to share single joint expert in cartel damages claim

The Competition Appeal Tribunal (Tribunal) has ruled that manufacturers of car passenger safety equipment accused of involvement in a cartel, must share a single joint expert in competition economics, rather than relying on their own individual experts (PSA Automobiles SA & Ors v Autoliv AB & Ors). 

The Claimants, who form part of the Stellantis group which owns car brands such as Peugeot, Fiat and Vauxhall, are seeking over €700m in damages from various manufacturers of seatbelts, steering wheels and airbags. The standalone claim is based on two European Commission (EC) decisions finding that the Defendants were party to various cartel arrangements in relation to the supply of these products to specific car manufacturers. 

The Defendants argued that they should be allowed to have their own experts in accordance with established practice, particularly given that not all of their corporate groups were addressees of both EC decisions. The Tribunal rejected these arguments. The Tribunal’s reasons, as set out below, will be of concern to defendants of future cartel damages claims.

  • There was no general rule that defendant groups had to have separate experts in cartel damages claims and the Tribunal has discretion to decide on the appropriate use of expert evidence in each case. 
  • There was no real conflict of interest between the Defendants at this stage because: (a) no contribution proceedings had been issued; (b) any conflict of interest arising from the alleged cartel involving only two of the three Defendant groups did not need to be addressed as this part of the claim was unparticularised. In other words, the Claimants had not yet provided a particularised case as to why each of the cartels might be between only two of the three Defendant groups (rather than all of them), which could give rise to a conflict if the expert evidence needed to determine whether two out of the three Defendant groups are in a cartel and the other is not; and (c) an umbrella damages claim required a comparison of a clean period with the time when the cartels were in operation so also did not give rise to a conflict. 

The Tribunal subsequently refused certain Defendants’ application for permission to appeal, noting that its ruling was a case management decision. A further application for permission to appeal has been made to the Court of Appeal. 

If this approach is followed in future cases, it may have significant implications for defendants. First, it may require defendants to compromise with respect to their preferred economists in the first instance. Second, defendants may need to seek permission to appoint their own separate experts if/when a conflict arises, which is likely to cause delay and require defendants to incur significant further costs. Alternatively, defendants may be incentivised to initiate contribution proceedings earlier than they would otherwise do so, such that any potential conflicts of interest between them would crystallise earlier in the proceedings.

Macfarlanes acts for the ZF Defendants in these proceedings.

Tags

competition, cartels and abuse of dominance, article