Competition litigation

Competition law cases are increasingly being litigated in the courts rather than just in front of competition authorities.

Competition cases litigated in the courts are typically abuse of dominance cases or follow-on claims for damages arising from cartel behaviour, but they also include some anti-competitive agreement cases and related damages and some regulatory disputes.

CRA senior staff have acted as experts before the courts in the UK, Ireland, South Africa, Norway, and the USA, as well as before specialist tribunals such as the UK Competition Appeal Tribunal and the International Court of Arbitration.

Expert witness work requires an additional set of skills to those routinely used in competition economics. It requires the ability to defend the analysis undertaken in the face of cross-examination. The experience and analytical rigour of CRA's senior staff means that they are well suited to work of this type and a number of staff have been involved in multiple Court cases.

Recent examples include:

• Mittal Steel South Africa vs. Harmony Goldfields: CRA acted for Mittal in its successful appeal against a finding of excessive pricing in South Africa.
• DPP vs. Bourke et al: CRA acted successfully for the defendants in a case in which the Irish competition authority alleged market sharing. A jury at Galway's Central Criminal Court acquitted the defendants of all charges.
• AMRAC/SIS/BAGS: CRA acted in the UK High Court for SIS in a dispute between the betting industry and the racecourses over the control of the broadcasting of horseracing in betting shops. SIS successfully defended the claim against it.
• Irish Department of Health vs. BUPA: CRA acted in the High Court for the Irish government in a dispute over the risk compensation scheme used for private health insurance in Ireland. The trial judge found in favour of the Irish government on all economic arguments.
• Vodafone, Orange and T-Mobile vs. Competition Commission: CRA provided testimony in the mobile operators' judicial review of the Competition Commission's decision on mobile termination rates.
• Masterbulk vs. Grieg: CRA acted for Masterbulk in an Article 101 case in an Oslo Shipping Arbitration. Although CRA staff gave evidence in this case, ultimately the court did not have to rule on the Article 101 issues.
• Comair vs. SAA: CRA acted for Comair in an abuse of dominance claim against South African Airlines. Judgement is pending.
• Hickeys et al vs. Health Service Executive: CRA acted in the Irish Commercial Court for an independent pharmacy group in a successful Article 101 case against the Irish Health Service Executive.
• P J Carroll et al vs. Irish Department of Health: CRA acted for the Irish government in a case in which the tobacco industry argued that anti-tobacco legislation was anti-competitive. Although CRA provided evidence, the case did not come to trial as the plaintiffs dropped the case just before trial.
• Greenstar Limited vs. Dublin City Council et al: CRA provided expert opinion and testimony for Greenstar, a private waste collector in Ireland. Greenstar brought the case against the local authorities, which wished to prevent private operators from providing waste collection services.

CRA experts are also actively engaged in a number of follow-on damages claims arising from cartels that have been prosecuted by the competition authorities.

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