CAT 6
28 Mar 2013
Judgment of the Tribunal in connection with a claim for damages brought by Albion Water Limited (“Albion”) against Dŵr Cymru Cyfyngedig (“Dŵr Cymru”) under section 47A of the Competition Act 1998. The claim was based on the finding, made by a differently constituted panel of the Tribunal in Case 1046/2/4/04 Albion Water Limited & Albion Water Group Limited v Water Services Regulation Authority, that Dŵr Cymru had infringed the Chapter II prohibition. In particular, that Tribunal panel held that the price at which Dŵr Cymru was prepared to offer Albion a common carriage service to carry water through its pipes (the “First Access Price”) amounted to an abuse by Dŵr Cymru of its dominant position in that it (i) imposed on Albion a margin squeeze, and (ii) was both excessive and unfair in itself (together, the “Infringement”).
By its claim for damages, Albion contended that it had suffered loss and damage by reason of the Infringement. Albion’s claim for damages comprised three heads: (i) if Dŵr Cymru had offered a lawful price for common carriage, rather than the abusive First Access Price, Albion would have been able to supply its customer, Shotton Paper, on the basis of common carriage, which would have been more profitable than the existing arrangements (the “Shotton Paper Claim”); (ii) as a result of the Infringement, Albion lost the chance to win a potentially lucrative contract to supply another business, Corus Shotton, and it was, therefore, deprived of further profits (the “Corus Claim”); and (iii) a claim for exemplary damages. Albion claimed interest on any sums awarded to it.
For the reasons given in the judgment, the Tribunal unanimously:
• awarded Albion damages in the amount of £1,694,343.50 in respect of the Shotton Paper Claim, together with interest at the rate of 2 per cent above the Bank of England base rate from 26 January 2005 until payment;
• awarded Albion damages in the amount of £160,149.66 in respect of the Corus Claim, together with interest at the rate of 2 per cent above the Bank of England base rate from 20 July 2006 until payment; and
• dismissed Albion’s claim for exemplary damages.
This is an unofficial summary prepared by the Registry of the Competition Appeal Tribunal.