Nexans France SAS & Anor v London Array Limited & Ors

In follow-on cartel damages proceedings, binding Commission findings against the defendant may encompass collusive exchanges with a leniency applicant whose regulatory infringement had formally ended. A Commission decision establishing an infringement by object does not exhaust the evidence relevant to civil liability. Unexplained failures to produce relevant evidence may justify adverse inferences without reversing the burden of proof. Claimants must establish actionable harm on the balance of probabilities, but need not invariably identify a particular supplier who would have submitted a lower counterfactual bid. Group-average econometric evidence may assist where the particular tender was affected by the cartel, subject to its evidential limitations. Challenges to factual evaluation, including expert methodology and comparator selection, do not become appealable errors of law merely through disagreement with the tribunal’s conclusions.

Nexans France SAS and Nexans SA were applicants for permission to appeal against findings of the Competition Appeal Tribunal in follow-on cartel damages proceedings. The respondents were participants in London Array, a joint venture constructing a windfarm in the Thames Estuary. They purchased export cables from Nexans Norway, a company in the applicants’ group. The European Commission had found that the applicants participated in a worldwide power cables cartel.

The tribunal found that the export cable tender had been affected by collusive exchanges involving Nexans, ABB and Prysmian, two other cable suppliers. It awarded compensation for an overcharge, allowing for competition during a second bidding round after the cartel ended. A separate claim concerning inter-array cables supplied by a non-cartelist failed and was not challenged. The cover sheet identifies the tribunal decisions as [2025] CAT 59 and [2025] CAT 74.

The applicants challenged the consistency of the findings with the Commission decision, procedural fairness, evidential inferences, the assessment of counterfactual bidding and the use of econometric averages. Green LJ heard the permission application orally.

Application for permission to appeal refused. Green LJ rejected each proposed ground.

1. The Commission decision contained binding findings that Nexans’ infringement continued until January 2009 and included its November 2008 exchanges of price information with ABB. ABB’s formally earlier infringement end date did not undermine those findings against Nexans. There was no inconsistency: continued cartel behaviour authorised to preserve the Commission’s investigation could occur without corresponding regulatory liability for the leniency applicant. The position in a claim against ABB was left open. Binding findings also established that the applicants’ anti-competitive conduct encompassed cable sales by Nexans Norway (paras 31–37).

2. A Commission decision establishing an infringement by object serves a regulatory purpose and need not record every relevant piece of evidence. Follow-on civil proceedings may require supplementary evidence, including evidence establishing causation. The tribunal could evaluate the additional evidence concerning Prysmian’s bidding and its interactions with Nexans (paras 12–13, 49–54).

3. Adverse inferences from omitted evidence are not automatic. Here, the tribunal had justifiably found no good explanation for the applicants’ failure to provide evidence about the cartel’s operation and internal bidding mechanisms. It could draw appropriate inferences, consistently with Prest v Petrodel Resources Ltd [2013] UKSC 34 and Royal Mail Group Ltd v DAF Trucks Ltd [2024] EWCA Civ 181. Its evaluation of the evidence concerning Prysmian did not reverse the burden of proof (paras 38–41, 54).

4. The pleaded reference to the relevant Commission recital sufficiently notified Nexans of the November exchanges, although ABB’s identity had been redacted in the published decision. The tribunal imposed no liability on ABB. Nexans also had ample opportunity to address the allegations involving Prysmian. The authorities concerning unnecessary, unpleaded adverse findings therefore did not establish procedural unfairness (paras 42–45, 55).

5. The respondents had to prove actionable harm on the balance of probabilities. Counterfactual assessment was evaluative and necessarily hypothetical. The evidence supported a finding that additional competition would probably have reduced prices without identifying a particular manufacturer who would have submitted a lower bid. That approach disclosed no error of law (paras 60–63).

6. The tribunal considered both group-to-group and individual-to-group evidence and their limitations. Group averages were relevant because the particular tender had been infected by the cartel, but were not conclusive. The High Court’s preference for project-specific evidence in BritNed Development Limited v ABB AB & Another [2019] Bus LR 718 depended on the evidence in that case. Comparator selection and the assessment of expert methodology were factual evaluations attracting appellate restraint. No appealable error was shown (paras 67–75).

• Court of Appeal (Civil Division): Green LJ refused the application for permission to appeal after an oral hearing: [2026] EWCA Civ 887 .
• Competition Appeal Tribunal: The tribunal found an overcharge on export cables and rejected the claim concerning inter-array cables. The challenged substantive judgment was dated 10 October 2025. The cover sheet identifies [2025] CAT 59 and [2025] CAT 74.