Devenish Nutrition Ltd & Ors v Sanofi-Aventis SA (France) & Ors

In follow-on competition proceedings, compensatory damages are the appropriate remedy for loss caused by an Article 81 infringement where the claimant can establish financial loss, including through reasonable estimation. Evidential difficulty does not itself justify punitive or gain-based relief. Exemplary damages are unavailable where the European Commission has already imposed, reduced or commuted fines for the same conduct, because that would duplicate punishment and conflict with the Commission’s decision. A restitutionary award and an account of profits are not generally available for this non-proprietary tort. They would in any event be inappropriate where compensatory damages are adequate, the claimants represent only part of an affected class, and allocation of any gain would be problematic.

The claimants were purchasers of vitamins, directly or indirectly, from manufacturers found by the European Commission to have participated in worldwide vitamin cartels infringing Article 81 of the EC Treaty. The proceedings were follow-on claims for compensation. Master Moncaster directed preliminary issues concerning whether the claimants could claim an account of profits, restitution of unjust enrichment or exemplary damages, on the facts pleaded and the Commission’s findings.

The central questions were whether those remedies were available for the assumed Article 81 infringements, and whether the claimants’ evidential difficulties, multiple status and position within the supply chain affected the answer.

1. Preliminary issues answered “No”. The claimants were not entitled, on the assumed facts, to exemplary damages, a restitutionary award or an account of profits.
2. Compensatory damages remained available. Article 81 required effective domestic remedies, subject to equivalence and effectiveness. Those principles did not require a remedy exceeding compensation for loss. Ordinary methods of assessment, including reasonable estimation and a broad evaluative approach where exact proof was difficult, could provide effective compensation.
3. The claim for exemplary damages was barred by the principle of non bis in idem. The Commission’s findings of deliberate, knowing and financially beneficial infringements supplied the relevant factual identity. The defendants’ fines, including fines later reduced or commuted under the leniency policy, served punitive and deterrent purposes corresponding to exemplary damages. A national award would duplicate punishment. Article 16 of the Modernisation Regulation provided a further reason: the national court could not adopt a punitive conclusion inconsistent with the Commission’s decision on the adequacy of sanctions.
4. The fact that exemplary damages were not automatically excluded in every domestic claim did not assist the claimants. The discretion was cautious, and the multiple claimants, the wider affected class, the scale of the fines and the difficulty of apportionment cumulatively made an award inappropriate. If the intended claim was compensatory, the pleadings would need amendment and the claim should be framed accordingly.
5. Restitutionary relief and an account of profits. The post-Attorney-General v Blake cases did not establish a general restitutionary remedy for torts. Binding Court of Appeal authority showed that such relief was not generally available for a non-proprietary tort. The pleaded claim was an antitrust claim of that kind, and compensatory damages were assumed to be adequate.
6. An account of profits was also inappropriate. The claimants were only part of an EU-wide class, occupied different positions in the supply chain, and could not show an exceptional legitimate interest in stripping the defendants’ gains. Pass-through, allocation, fines, multinational accounting and disclosure difficulties reinforced that conclusion.