WH Newson Holding Ltd & Ors v IMI Plc & Ors

Competition Act 1998, section 47A, is cause-of-action neutral. It can encompass monetary claims founded on contract, restitution or unlawful means conspiracy, provided the claim concerns loss caused by an infringement established by the relevant competition decision. The controlling criterion is the factual nature of the claim, not the cause of action used to describe it.

A claim may not introduce factual allegations concerning conduct distinct from the established infringement. An unlawful means conspiracy based solely on a cartel infringement may therefore fall within section 47A, while an antecedent conspiracy requiring investigation beyond the competition decision does not.

The claimants brought a follow-on damages action concerning a European Commission decision finding a copper plumbing-tube cartel contrary to Article 101 TFEU. The Competition Appeal Tribunal transferred the proceedings to the High Court under section 16(5) of the Enterprise Act 2002, on the basis that the claim could be no wider than one under section 47A of the Competition Act 1998.

The defendants applied to strike out two unlawful means conspiracy claims. The first relied on the cartel agreement itself. The second relied on an alleged antecedent agreement involving companies within the same group and unknown directors or controllers. The central issue was whether either claim fell within the statutory jurisdiction for follow-on monetary claims.

1. Section 47A is broadly framed and is not confined to claims for breach of statutory duty. Its reference to any claim for damages and any other claim for a sum of money includes claims whose legal basis is contractual, restitutionary or tortious, provided they concern loss or damage caused by the established infringement.

2. The Court of Appeal authorities, including Enron Coal Services Ltd v English Welsh and Scottish Railway Ltd [2009] EWCA Civ 647 and Deutsche Bahn AG v Morgan Crucible Co [2012] EWCA Civ 1, establish that the competition decision defines the infringement on which the claim is based. References to the CAT determining only causation and quantum must be read in context and cannot restrict the statutory language literally in materially different causes of action.

3. The determining criterion is the factual nature of the claim, rather than the cause of action with which it is clothed. Section 47A does not generally permit claims concerning conduct distinct from the established infringement, even where the infringement is an element of the cause of action.

4. The conspiracy pleaded in paragraph 24(b) was based solely on the cartel agreement found by the Commission to infringe Article 101 TFEU by object. Applying OBG Ltd v Allan [2007] UKHL 21, the defendants’ intention to promote their economic interests could amount to the necessary intention to injure purchasers, even if the claimants were intermediate purchasers. The requirement of damage added no separate obstacle because financial loss is essential to a section 47A claim. The claim was not struck out.

5. The conspiracy pleaded in paragraph 24(c) focused on an antecedent agreement which was not the subject of the Commission decision and could not itself constitute the relevant competition infringement. Establishing that allegation would require a factual inquiry into misconduct outside the boundaries of the decision. It therefore fell outside section 47A and was struck out.

6. The judge noted, without deciding, that the position might differ where a competition decision established an infringement only by effect rather than by object.

The proceedings were commenced before the Competition Appeal Tribunal and transferred to the High Court under section 16(5) of the Enterprise Act 2002. The judgment records earlier Court of Appeal and Supreme Court authorities concerning section 47A, but this was a first-instance determination of the strike-out applications.