Private enforcement of both UK and EC competition law is possible and encouraged. The OFT prepared a discussion paper on private enforcement stating ‘businesses harmed by cartels or other anti-competitive practices should be better placed to recover their losses and address the competitive disadvantage they have suffered.’
A vitamin cartels judgement in 2003 made it clear that where there is an English element to a cartel all European losses can be recovered by an action in the English courts. A range of private claims have succeeded including:
Healthcare at Homes obtained £2 million damages for abuse of their dominant position from Genzyme in the supply of Cerezyme pharmaceutical for treatment of Gaucher disease;
A consumer association collective action sought compensatory and exemplary damages of 25% JJB sports turnover for football shirt price fixing. They obtained £20 for purchasers of a Manchester United or England shirt between 2000 and 2001. People who did not join the action can still receive £5 or £10 per shirt if they have proof of purchase and/or the shirt; and
Arkin whose lengthy cases concerning costs suggest he would have welcomed the current ability to take action in the Competition Appeal Tribunal for predatory shipping containers pricing.
Potential penalties for private enforcement are serious, including hefty damages, adverse publicity and extensive time and management costs absorbed during the course of the litigation. Avoiding or taking advantage of private competition law enforcement can highly beneficial.
