WH Newson Holding Ltd & Ors v IMI Plc & Ors

Section 47A of the Competition Act 1998 provides a procedural route for bringing an existing competition-law cause of action before the Competition Appeal Tribunal. It does not create a distinct form of liability. A person may therefore be liable for contribution where the claimant could have sued that person in the High Court for the same underlying damage, even though the person was not an addressee of the infringement decision and could not be sued under section 47A in the Tribunal. The question under the Civil Liability (Contribution) Act 1978 is whether the parties are subject to corresponding liabilities for the same damage. The practical inquiry is whether payment by either party would reduce the other’s liability to the claimant.

The claim concerned losses allegedly caused by the copper plumbing tubes cartel. The claimants had commenced proceedings in the Competition Appeal Tribunal under section 47A of the Competition Act 1998 against addressees of the European Commission infringement decision. The claim was transferred to the High Court. The defendants sought contribution from AGA, which was alleged to have participated in the cartel through Wednesbury before its sale to Mueller Industries.

Mueller objected to disclosure of documents concerning Wednesbury’s earlier participation. It argued that, because AGA could not be sued under section 47A, AGA could not be liable to contribute under the Civil Liability (Contribution) Act 1978. The central issue was whether the absence of section 47A liability prevented a common liability for the purposes of contribution.

1. Mueller’s submission was rejected. The disclosure directions made at the case management hearing were left undisturbed.

2. The jurisdiction conferred on the Competition Appeal Tribunal by section 47A is limited to claims against companies which were addressees of the relevant infringement decision and to findings actually made in that decision. That restriction does not govern an action commenced in the High Court.

3. Article 101 TFEU has direct effect. A person who suffered loss from an infringement may bring a High Court action for damages without relying on a pre-existing infringement decision, provided participation and loss are proved.

4. Under section 1 of the Civil Liability (Contribution) Act 1978, contribution depends on corresponding liabilities to the claimant for the same damage. The practical test is whether payment by one alleged tortfeasor would reduce or extinguish the other’s liability, and vice versa. The statutory question remains whether the claims concern the same damage.

5. Section 47A does not create a new cause of action or a separate category of section 47A liability. It provides a forum in which an existing competition-law cause of action may be pursued when its statutory conditions are met. If the claimants had sued IMI, Boliden and AGA in the High Court, they would have relied on the same cause of action and claimed compensation for the same damage. AGA could therefore be liable to contribute if its participation in the cartel were established.

The claim was commenced in the Competition Appeal Tribunal and transferred to the High Court by order dated 24 July 2012 under Rule 48(a) of the Competition Appeal Tribunal Rules (S.I. 2003/1372). The judgment itself records no appeal from the present decision.