Ruling of the Tribunal in relation to the Class Representative's application to amend her claim form to introduce "user damages" as a new head of damage (the "Amendment Application")
The Tribunal permitted the Amendment Application as it considered that it is not possible to extract from the cases referred to by the parties a principle that user damages are unarguably not available for the statutory tort of breach of the Chapter II Prohibition in circumstances where a conventional claim to damages is not, or may not be, available.
The Tribunal stated whether user damages are available in the context of this case is far from straightforward. The Tribunal agreed with the Class Representative that there are parallels which can be drawn with the reward of user damages in relation to other torts and that the case has reasonable prospects of succeeding at trial. In addition, this is a developing area of law and therefore not one which is amenable to summary determination. The Amendment Application raised a question of law that needs to be answered in the context of specific facts.
In relation to certification issues related to the assessment of user damages, the Tribunal considered many of the arguments raised by the Defendants were essentially the same as those which were rejected by the Tribunal in respect of conventional damages. The Tribunal considered the claim is already certified and proceeding to trial. There was no reason why certification should not embrace the claim for user damages, on the Microsoft principles.
