Cartel damages claims in England: end of the ‘post-fact’ era?

Abstract

The importance of facts in English cartel damages litigation is evident from the rules governing claims for damages. The rules aim to balance the interests of claimants and defendants and incorporate safeguards against defendants being forced to defend unmeritorious claims. In cartel damages claims, however, claimants have deployed, in some cases successfully, tactics aimed at minimizing engagement with the underlying facts at all stages of the proceedings. This article examines these tactics and the extent to which recent judgments, such as the case of BritNed v ABB, have undermined the viability of such an approach.