Source: All England Reporter
Publisher Citation: [2007] All ER (D) 293 (Oct)
Neutral Citation: [2007] EWHC 2394 (Ch)
Court: Chancery Division
Judge:

Lewison J
Representation Alexander Layton QC and Jennifer Skilbeck (instructed by Irwin Mitchell) for the claimants.
  Thomas de la Mare and Brian Kennelly (instructed by Ashurst) for the first, second and third defendants.
  Mark Hoskins (instructed by Freshfields Bruckhaus Deringer) for the fourth and fifth defendants.
  Mark Brealey QC (instructed by Mayer Brown International LLP) for the sixth, seventh and eighth defendants.
Judgment Dates: 19 October 2007

Catchwords

Competition - European Community rules - Exemplary damages - Fine imposed by Commission in respect of vitamin cartel - Claimants seeking exemplary damages - Double jeopardy - Whether fine and exemplary damages serving same aim of punishment and deterrence - Whether Community law precluding national court taking decision running counter to decision adopted by Commission - EC Treaty, art 81 - Council Regulation (EC) 1/2003, art 16.

The Case

The award of exemplary damages in national proceedings was precluded in a case in which defendants, such as companies who had entered into worldwide cartels in respect of their manufacture of various vitamins, in breach of art 81 of the EC Treaty, had already been fined, or had had fines imposed and then reduced or commuted, by the European Commission in connection with such breaches. To award exemplary damages in those circumstances would (i) be contrary to the principle of double jeopardy; (ii) would be constitute an impermissible decision which ran counter to the decision adopted by the Commission, contrary to art 16 of Council Regulation (EC) 1-3004 (the Modernisation Regulation); and (iii) in the case of a defendant whose fine had been reduced or commuted by reason, inter alia, of their status as a whistleblower, would undermine the policy that it was of even more importance to encourage whistleblowers than to punish participants in a cartel and would be wrong in principle.

Practice Areas

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