On 19 November 2024 the Chancellor of the High Court refused an application by 138 public authority claimants in the Trucks Second Wave Proceedings for permission to appeal the Competition Appeal Tribunal’s Judgment of 5 July 2024 ([2024] CAT 45).
The Court of Appeal upheld the CAT’s refusal to strike out the defendants’ mitigation defences and found that none of the three proposed grounds of appeal had any real prospect of success. The claimants had argued that, “as a matter of legal policy the courts should hold that the analysis of pass on should not extend beyond the economic supply chain, which ends with the local authority as final “end user”, and out of the domain of competition law into the political realm of public authority funding and decision-making.” The Court of Appeal held that the CAT was correct to rule that this was a novel point which was not suitable for summary determination, found no support in any previous decided case, and should only be considered at trial.
The claimants had also argued that on the defendants’ case the claimants would not be able to bring claims in tort if they were prevented from claiming for loss they had passed on. But the Court of Appeal noted that the defendants’ position (as pointed out in the defendants’ statement under PD52C.19) was simply that the CAT has to determine what loss was and was not passed on and the claimants cannot claim for loss they have not suffered, applying the compensatory principle affirmed by the Supreme Court in Sainsbury’s v Mastercard [2020] UKSC 24 at [197].
Sarah Abram KC and Rachel Oakeshott acted for the Iveco and Scania defendants, instructed by Herbert Smith Freehills LLP and Allen & Overy Shearman Sterling LLP.