Britned Development Ltd v ABB AB & Anor

A court cannot compel a claimant to give an undertaking as a condition of a final damages award where the claimant is legally entitled to damages. If the undertaking was material to avoiding overcompensation, the court may adjust the award to reflect the risk. Interest under section 35 A of the Senior Courts Act 1981 is compensatory, not punitive, and is assessed broadly at a fair simple rate. The conventional rate may be adapted to the currency of the award and the claimant’s general circumstances.

This supplemental judgment addressed consequential matters following BritNed’s successful claim against ABB. The issues concerned an undertaking relating to a regulatory cap, damages, interest and permission to appeal.

BritNed declined to provide the undertaking on which the original damages assessment had been predicated. The court considered whether the undertaking could be compelled or made a condition of damages, whether the regulatory-cap issue could be determined in the regulators’ absence, and how the risk of overcompensation should affect the award. It also determined the period and rate of simple interest under section 35 A of the Senior Courts Act 1981.

1. Undertaking and damages. The court had no jurisdiction to require BritNed to give the proposed undertaking. The court was not functus because no consequential order had yet been made. The regulatory-cap issue could not satisfactorily be determined in the absence of the regulators, who were not before the court.
2. The undertaking could not be imposed as the price of a final damages award. An undertaking may be required in relation to an interim injunction because that remedy is discretionary. BritNed’s entitlement to final damages arose as a matter of law and not discretion.
3. The absence of the undertaking created a risk of overcompensation. Applying a broad-brush approach, the court reduced the previously assessed damages of €13,009,568 by 10%, awarding €11,708,611.20.
4. Interest. Section 35 A of the Senior Courts Act 1981 confers a broad discretion. Interest is compensatory rather than punitive. The court should determine a fair rate broadly, considering the currency of the award and the claimant’s need to replace the lost money.
5. The court applied 12-month EURIBOR plus 1% from 21 May 2007 to 31 October 2018. From 1 November 2018, the post-judgment rate referred to in the Judgments Act 1838 was applied at 8% per annum. Permission to appeal was granted in relation to the Overcharge Claim, Lost Profit Claim and Regulatory Cap Issue.