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Neutral citation [2009] CAT 7

IN THE COMPETITION
APPEAL TRIBUNAL

Case Number: 1106/5/7/08

Victoria House

Bloomsbury Place

London WC1A 2EB

12 March 2009

Before:

LORD CARLILE OF BERRIEW QC

(Chairman)

GRAHAM MATHER

RICHARD PROSSER OBE

Sitting as a Tribunal in England and Wales

BETWEEN:

ENRON COAL SERVICES LIMITED (IN LIQUIDATION)

Claimant

-v-

ENGLISH WELSH & SCOTTISH RAILWAY LIMITED

Defendant

APPEARANCES:

Mr Daniel Beard (instructed by Orrick, Herrington & Sutcliffe) appeared on behalf of the Claimant.

Mr Mark Brealey QC and Miss Maya Lester (instructed by Freshfields Bruckhaus Deringer LLP) appeared on behalf of the Defendant.

Heard at Victoria House on 5 February 2009

_____________________________________________________________________

JUDGMENT (RULE 40)

_____________________________________________________________________

Introduction

On 17 November 2006, the Office of Rail Regulation (the "ORR") announced a decision under the Competition Act 1998 ("the Act") that the Defendant, English Welsh and Scottish Railway Limited ("EWS"), had abused its dominant position in breach of the Chapter II prohibition imposed by section 18 of the Act and Article 82 of the EC Treaty (the "ORR Decision"^[1]).

On 7 November 2008, the Claimant, Enron Coal Services Limited (in liquidation) ("ECSL"), filed a claim against EWS for damages under section 47A of the Act, in reliance on the ORR Decision. The claim form was amended by consent on 8 January 2009. References in this judgment to paragraph numbers of the claim form are to those in the claim form as amended.

EWS was and is a major supplier of rail freight services in Great Britain. The ORR Decision found that EWS was dominant in the market for coal haulage by rail in Great Britain at the material time under consideration. Until the end of 2000, EWS was a monopolist in the relevant market. The only company to compete with EWS in that market was Freightliner Heavy Haul ("FHH"), though FHH did not haul coal until January 2001 and remained capacity constrained at least until the end of 2002 (see paragraphs 517 and 518 of the ORR Decision).

ECSL was established in 1999 as a subsidiary of the US-based Enron Corporation. It is described in the ORR Decision and the claim form as having acted as a third party intermediary for coal purchasing, offering a range of services from simple coal trading to end-to-end ("E2E") arrangements. Under E2E arrangements, ECSL provided customers with services for the management of the entire coal supply chain, from coal purchase at the loading port through shipping, rail haulage and delivery to the customer's stockpile. In order to provide E2E services to its customers ECSL needed to procure coal haulage services from a rail freight provider. At the time ECSL became active as a supplier to UK power stations in 1999, EWS was the sole haulier of coal by rail (and remained so until FHH's entry into the market on 1 January 2001).

The loss and damage claimed by ECSL is divided into three main parts. First, it is claimed that EWS overcharged ECSL for coal haulage (paragraphs 30-43 of the claim form); second, that EWS imposed additional costs on ECSL (paragraphs 44-45); and third, that as a result of EWS's unlawful conduct ECSL lost contracts and/or contractual opportunities (paragraphs 46-51). In the alternative or in addition to compensatory damages, ECSL also seeks restitution and/or restitutionary damages and/or an account of profits, and interest on any sums due (paragraphs 52-57). This judgment is concerned only with the overcharge claims at paragraphs 30-43 of the claim form; the other elements of the claim are not considered further.

The overcharge claim is subdivided into two sections:

(a) at paragraphs 31-33 of the claim form, ECSL sets out an overcharge claim in respect of coal hauled to two power stations, Fiddler's Ferry and Ferrybridge, owned by Edison Mission Energy ("EME");

(b) at paragraphs 34-43 of the claim form, ECSL sets out an overcharge claim in respect of coal hauled to the Eggborough power station owned by British Energy Limited ("BE").

In this judgment, we refer to these as "the EME overcharge claim" and "the BE overcharge claim", respectively.

On 7 January 2009, EWS filed an application under Rule 40 of the Competition Appeal Tribunal Rules 2003 (S.I. No. 1372 of 2003, the "Tribunal Rules") requesting the Tribunal to reject the EME overcharge claim and the BE overcharge claim.

Following a case management conference and the exchange of skeleton arguments, the Tribunal heard counsel for the parties at an oral hearing on 5 February 2009.

At the end of that hearing the Tribunal announced its decision, and that the reasons would be provided in writing at a later date. The Tribunal's decision was that the EME overcharge claim at paragraphs 31-33 of the amended claim form would be rejected under Rule 40 of the Tribunal Rules, but that the BE overcharge claim at paragraphs 34-45 of the amended claim form would not be rejected. These are the reasons for that decision.

The factual and legal background to the application

In order to explain our decision it is necessary to have regard to Rule 40 of the Tribunal Rules, section 47A of the Act and the nature of the infringement established by the ORR in its Decision.

Rule 40 of the Tribunal Rules, so far as material, provides:

"Power to reject

40. - (1) The Tribunal may, of its own initiative or on the application of a party, after giving the parties an opportunity to be heard, reject in whole or in part a claim for damages at any stage of the proceedings if -

(a) it considers that there are no reasonable grounds for making the claim; …"

Section 47A of the Act, so far as material, provides:

"47A Monetary claims before Tribunal

(1) This section applies to—

(a) any claim for damages, or

(b) any other claim for a sum of money,

which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.

(2) In this section "relevant prohibition" means any of the following—

…

(b) the Chapter II prohibition;

…

(d) the prohibition in Article 82 of the Treaty;

…

(3) For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.

(4) A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.

(5) But no claim may be made in such proceedings—

(a) until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed;

…

(6) The decisions which may be relied on for the purposes of proceedings under this section are—

(a) a decision of the OFT that … the Chapter II prohibition has been infringed;

(b) a decision of the OFT that … Article 82 of the Treaty has been infringed;

…

(9) In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.

(10) The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim."

The ORR is one of the specialist sectoral regulatory authorities with concurrent powers, alongside the OFT, to apply and enforce the provisions of the Act and Articles 81 and 82 EC. It is common ground for the purposes of these proceedings that the ORR can be read into section 47A of the Act in place of the OFT.

The ORR Decision is an extraordinarily long and complex document. The non-confidential version of the Decision published on the ORR's website contains no less than 409 pages. Identifying the precise nature of the findings made in the Decision and their consequences are no doubt matters that the parties will want to address in some detail at the main hearing. For the purposes of this judgment, we concentrate primarily on the section of the ORR Decision entitled "Part IIB: Assessment of abuse of dominance - Discrimination" (paragraphs B1-B198 of the ORR Decision), to which both parties referred extensively at the hearing.

In the introduction to this section of the Decision, EWS's discriminatory conduct is summarised as follows:

"B2 EWS has engaged in abusive discrimination between its customers. In particular, EWS set an existing customer, ECSL, selectively higher prices than it charged other customers directly for the same flows without objective justification.

B3 This behaviour was a further manifestation of EWS's wider strategy to exclude or limit competitive opportunities for potential new entrants to the market for coal haulage by rail in Great Britain. EWS was concerned that ECSL could facilitate such entry into this market by developing an intermediary role, including through the negotiation of E2E contracts with new owners of power stations. EWS sought to constrain this competitive threat by ensuring that it, and not ECSL, secured direct contracts with the power stations.

…

B5 EWS's discriminatory treatment of ECSL placed ECSL at a competitive disadvantage in respect of two specific sets of flows:

(a) Flows to the Fiddler's Ferry and Ferrybridge power stations, operated by Edison Mission Energy (EME). Between May 2000 and October 2000, EWS imposed higher prices on ECSL. This placed ECSL at a competitive disadvantage in its contractual negotiations with EME relating to coal haulage supply to Fiddler's Ferry and Ferrybridge power stations. Prior to the period of discriminatory pricing, ECSL had supplied EME on these flows on an E2E basis. Following the period of discriminatory pricing, ECSL was unsuccessful in renewing that relationship.

(b) Flows to Eggborough power station, operated by British Energy (BE). Between May 2000 and November 2000, EWS imposed higher prices on ECSL which placed ECSL at a competitive disadvantage in its contractual negotiations with BE. Even though ECSL was eventually successful in the tender negotiations, EWS sought to undermine ECSL's ability to contract with BE as an intermediary."

The ORR's description of the evidence of EWS's exclusionary intent is set out at paragraphs B25 to B44 of the ORR Decision, followed by a section relating to EME which begins at paragraph B45. At B57 the Decision states:

"B57 On the basis of all this evidence, EWS is found to have offered selective price reductions to EME, with prices considerably lower than those offered to ECSL in May 2000. EWS has not provided an objective justification for the price differences.

B58 Taken together with the evidence of the price increases to ECSL compared to the rates ECSL had previously been granted, and the evidence above of EWS's intent to impede ECSL's ability contract directly with the generators for rail haulage, including by way of E2E supply, this evidence supports the finding that EWS discriminated against ECSL between May 2000 and November 2000 in respect of prices for coal haulage on the flows to Fiddler's Ferry and Ferrybridge."

The ORR Decision addresses haulage to BE's Eggborough power station from paragraph B66 onwards. At paragraph B90 it states:

"B90 Taking together the evidence of EWS's price increases to ECSL, the evidence of the price reductions made available to BE but not ECSL and the evidence above of EWS's intent to impede ECSL's operations, EWS is found to have discriminated against ECSL between May 2000 and November 2000 in respect of prices for coal haulage on the flows to Eggborough. The section below Response to EWS's Arguments explains why the differences in prices cannot be justified by differences in the performance regime that ECSL sought, or by any objective justification."

At paragraph B99 the ORR Decision states:

"B99 For the reasons set out above (and also those discussed in the section below Effect on competition under Response to EWS's arguments) the discrimination against ECSL is found to have placed ECSL at a competitive disadvantage when it was negotiating with BE for the provision of E2E and intermediary services. The existence of the competitive disadvantage is not inconsistent with the fact that, in the end, ECSL did manage to reach an agreement with BE."

The initial conclusion for this section is contained at paragraph B100:

"B100 On the basis of all the evidence set out above, and the points made in response to EWS's arguments below, it is found that between May 2000 and November 2000, EWS pursued discriminatory pricing practices against ECSL. This discriminatory pricing placed ECSL at a competitive disadvantage when negotiating intermediary contracts (including E2E deals) with generating companies. EWS's intention was to reduce the threat that ECSL posed to its position in the market for coal haulage by rail in Great Britain. EWS has advanced no credible objective justification for the higher prices charged to ECSL. EWS's conduct distorted the competitive process and is inconsistent with the obligations of a dominant company. EWS's behaviour towards ECSL is therefore found to be abusive."

There then follows a long section from B101 onwards in which the ORR responds to the arguments raised by EWS in its defence. This section includes the following:

"B138 First, the finding of discriminatory abuse is confined to flows to Fiddler's Ferry, Ferrybridge and Eggborough. Taking Figure 5 of the Response at face value, it seems that flows to these destinations tend to have been flows for which EWS's calculations show a higher price to ECSL.

B139 Second, EWS's calculations seem to compare average ECSL prices against average prices to other customers. However, the discrimination identified in this Decision is not discrimination against ECSL overall, but discrimination against ECSL during a particular time period. This is the time period when ECSL was seeking general terms for haulage that would allow it to then bid for direct contracts with the generators including on an E2E basis.

B140 This time period was also after EWS had become concerned about the threat posed by ECSL as a potential facilitator of the entry of a new freight train competitor to EWS. This time period excludes the time of ECSL's initial operation as an E2E supplier, as well as the subsequent time period from 2001 when ECSL had won the BE contract and had the opportunity to use FHH for at least some of its coal haulage. Because of this, ORR could not rely on evidence that there was no discrimination against ECSL on average (say across 1999, 2000 and 2001) to reject the hypothesis that there had been discrimination against ECSL between May 2000 and November 2000. Thus, calculations showing average quotes to ECSL are of limited value. (Similarly, calculations of average quotes to other customers could be misleading if the quotes were provided at different points in time and under quite different conditions from the ECSL quotes.)"

In the overall conclusion on discrimination, the ORR Decision states at paragraph B198:

"B198 For all of the above reasons, it is found that between May 2000 and November 2000, EWS pursued, without objective justification, selective and discriminatory pricing practices that placed ECSL at a competitive disadvantage in its contractual negotiations with two power generators, EME and BE. By impeding the competitive position of ECSL as a customer and a competitor, EWS's actions were capable of distorting the structure of competition in the relevant market. This conduct was contrary to both the Chapter II prohibition of the Act and Article 82 EC."

Summary of the parties' submissions

We received detailed written submissions and heard from both parties' counsel orally. The following summarises the main thrust of their arguments:

(a) In essence, EWS's central argument in support of its application was that the prices actually charged by it to ECSL for coal haulage (as opposed to other prices quoted to ECSL) were not found by the ORR to have been discriminatory. EWS submits that, there having been no finding by the ORR that ECSL actually paid discriminatory prices, the Tribunal has no jurisdiction to entertain either the EME overcharge claim or the BE overcharge claim.

(b) ECSL submits that EWS's argument rests on a tendentious, narrow reading of the ORR Decision which is not sustainable. The ORR Decision establishes that EWS engaged in price discrimination against ECSL. That price discrimination meant that ECSL overpaid EWS for coal haulage services in transporting coal to EME's and BE's power stations. The applicable test is whether the claims are "bound to fail". It cannot be said that ECSL's claims were bound to fail, and therefore EWS's application should be rejected.

The Tribunal's analysis

We start our analysis by considering the legal test applicable to applications of this kind. Rule 40(1)(a) of the Tribunal Rules provides that a claim or part of a claim may be rejected if the Tribunal considers that there are "no reasonable grounds" for making the claim. We were referred to Emerson Electric and others v. Morgan Crucible [2007] CAT 30 at [24], where it is stated that:

"24. …the test under Rule 40 is whether the Tribunal is certain that the claim is bound to fail. This accords with the test under Rule 3.4(2)(a) of the Civil Procedure Rules ("CPR") to strike out a claim because there are no reasonable grounds for bringing it. "The court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out" (see Hughes v Colin Richards & Co [2004] EWCA Civ 266, at paragraph 22, per Peter Gibson L.J., citing Barrett v Enfield London Borough Council [2001] 2 AC 550, at 557 per Lord Browne-Wilkinson)."

In addition to considering the application of Rule 40 (power to reject) we also considered whether the application could equally have been brought under Rule 41 of the Tribunal Rules (summary judgment). Under Rule 41 the Tribunal may of its own initiative or at the application of either party reject in whole or in part a claim for damages if, inter alia, it considers that the claimant has "no real prospect of succeeding on the claim". This point was put to counsel for both parties at the hearing. Mr Brealey QC, counsel for EWS, accepted that the application could have been made under either rule and submitted that the two tests, "bound to fail" and "no realistic prospect of success" amounted to much the same thing. He referred us, by way of example, to ICI Chemicals & Polymers v TTE Training [2007] EWCA Civ 725, per Moore-Bick LJ at [9], where the "bound to fail" test of a strike-out application was used in the context of an application for summary judgment (Part 24 of the CPR being the equivalent of Rule 41 of the Tribunal Rules).

Mr Brealey explained that the application had been made under Rule 40 rather than Rule 41 because, in EWS's submission, the Tribunal lacked jurisdiction to hear the claim. If the Tribunal lacked jurisdiction there could be no reasonable grounds for making the claim and the claim was bound to fail. In any case, no prejudice would be suffered were we to decide the application under Rule 41 as opposed to Rule 40. Further, Mr Brealey submitted that the question of whether the Tribunal had jurisdiction to determine the overcharge claims was a short point of law with no issues of fact in dispute. We were referred to ICI Chemicals & Polymers v TTE Training, cited above, per Moore-Bick LJ at [12]:

"… It is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better."

and Price Meats v Barclays Bank [2002] 2 All ER (Comm) 346, per Arden J at [13]:

"… The present application raises a point of law which can be dealt with on this application and in those circumstances I do not consider it would be appropriate to leave the allegations in question in the pleadings."

Mr Beard, appearing for ECSL, at an early stage of the hearing accepted realistically that if the application raised a clear point of law then it would be sensible for the Tribunal to dispose of it at this stage.

In our consideration, there is a distinction to be drawn between the wording of Rule 40 and Rule 41 respectively; and consequently the respective tests applicable in each case. The two rules exist for different purposes: otherwise there would be no need for two separate rules. However, in these proceedings, we consider that nothing material turns on which particular test is applied and conclude that it was entirely reasonable for EWS to bring its application under Rule 40 in the circumstances of this case. Therefore we will apply the test of whether the claims are "bound to fail", rather than the "no realistic prospect of success" test, without it being necessary for us to decide to what extent those two tests may differ in law.

Mr Beard submits that the Tribunal should be slow to exercise its jurisdiction to reject part of a claim where the claim concerns a novel point of law or an area of law which is uncertain or developing. He relies on Emerson v Morgan Crucible, cited above, at paragraph [26] in support of this proposition:

"26. We consider that it would be inappropriate on a summary application under Rule 40 made at the commencement of proceedings, for either party to adduce further evidence before the Tribunal which has not been provided with the claim form. Where a serious live issue of fact can only be properly determined by hearing oral evidence then on an application under Rule 40 made at the commencement of the proceedings, it would not be appropriate for the Tribunal to reject the claim for damages using its powers under Rule 40 of the Tribunal Rules. Similarly where the issues of law are uncertain it is desirable that they are determined on the basis of the facts as found by the Tribunal. This approach accords with the approach taken under CPR Rule 3.4(2)(a) (see Bridgeman v Alpine-Brown, 19 January 2000, (CA) (unreported))."

(Emphasis added).

Mr Beard submits that the scope of the Tribunal's jurisdiction to hear damages claims under section 47A(1) of the Act is just such an uncertain and developing area of law and is, so far, untested. He accepts that there needs to be an infringement decision before a damages claim can be brought before the Tribunal and that the damages claim must relate to the infringement decision. However, he submits that the extent to which a public infringement decision may give rise to claims for damages which can be heard pursuant to section 47A(1) remains unsettled as a point of law.

In essence, we understand these submissions to mean that the Tribunal's jurisdiction under section 47A is limited to hearing so-called "follow-on" damages actions (so called because they must follow-on from a prior existing finding that there has been an infringement of competition law) as opposed to freestanding or standalone damages actions (which do not rely on a prior finding of infringement) which must, at the present time, be brought in the High Court. Thus far, these submissions are uncontroversial and accord with what was said in Devenish Nutrition v Sanofi-Aventis and others [2008] EWCA Civ 1086, per Arden LJ at [7]:

"7. … Under s47A of the Competition Act 1998 as amended by the Enterprise Act 2002, a victim of a cartel may bring a follow-on action to claim personal relief. He may do so by relying on the findings of the Commission."

and by the Tribunal in BCL Old Co and others v BASF and others [2008] CAT 24 at [31]:

"The effect of section 47A is to enable a person who has suffered loss as a result of an infringement of the EC or UK competition rules to rely upon a relevant decision of the EC or UK competition authority establishing the infringement in question, rather than having to establish the infringement independently. This is achieved by subsection 47A(9), which provides that the Tribunal is bound by 'any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed'."

In a follow-on damages claim, therefore, the Tribunal's job is not to establish liability, but to deal with causation and quantum.

Mr Beard submitted that the question of precisely where the line is to be drawn between follow-on and standalone damages actions is not easily discernible by reference to the statute alone. It has not been the subject of a prior decision of this Tribunal or of the Courts. We accept Mr Beard's submission that in some cases, the scope of what follows from a detailed infringement decision (and, therefore, what is within the Tribunal's jurisdiction) may only be capable of being assessed by reference to the full text of the infringement decision in question. We accept too that we should exercise caution in applying our power under Rule 40 to reject a claim. However, in our judgment, the need to adopt a cautious approach to Rule 40 is adequately encapsulated in the test which we are applying that we may only reject a claim which we are certain is "bound to fail".

As to the main substantive arguments raised by the parties, EWS's case is, first, that the prices actually charged to ECSL for coal haulage to EME (which as we understand it were agreed in June/July and/or December 1999) and those for coal haulage to BE (agreed in March/April 2000) were not found to be discriminatory by the ORR. EWS accepts that the prices it subsequently quoted to ECSL in May 2000 were comparatively higher than the earlier prices referred to above, but states that as the May 2000 prices were not accepted by ECSL they were never charged to ECSL, and so there can have been no overcharge as a result of prices which were quoted but not applied in practice. EWS relies on paragraph B47 of the ORR Decision which states in respect of coal hauled to EME's Fiddler's Ferry and Ferrybridge power stations:

"B47 … The contract and related prices were not agreed between ECSL and EWS and coal was not hauled under them."

They rely too on paragraph B69 of the ORR Decision in respect of coal hauled to BE's Eggborough power station.

"B69 …no coal was hauled at the May 2000 price quoted to ECSL."

Secondly, EWS argues that the price discrimination established in the ORR Decision is limited to a specific period of time, from May to November 2000. For example in its conclusion at paragraph B198, the ORR Decision states:

"B198 For all of the above reasons, it is found that between May 2000 and November 2000, EWS pursued, without objective justification, selective and discriminatory pricing practices that placed ECSL at a competitive disadvantage in its contractual negotiations with two power generators, EME and BE."

(emphasis added)

In a similar vein, see paragraphs B58, B90 and B100 of the ORR Decision.

EWS also places particular emphasis on paragraph B139 which states:

"…the discrimination identified in this Decision is not discrimination against ECSL overall, but discrimination against ECSL during a particular time period."

In response, ECSL submits that EWS, by focusing solely on the prices actually charged and the time at which those prices were agreed, is concentrating on the wrong prices and is construing the ORR Decision too narrowly. The ORR Decision is not to be read as if it were a statute or some other legal document of statutory precision: see R v MMC ex parte National House Building Association [1993] ECC 388, (1994) 6 Admin LR 161, [1992] NPC 122 (judgment of Auld J in the Queen's Bench Division of the High Court, of 1 October 1992, upheld on appeal at [1995] ECC 89, [1994] NPC 3). But, the ORR Decision does establish that EWS was guilty of price discrimination. This is evidenced by the higher prices offered to ECSL, the lower prices offered to EME and BE, and the fact that those lower prices were not offered to ECSL. ECSL relies on paragraph B21 of the ORR Decision which states:

"B21 The objection concerns three particular aspects of the negotiations between EWS and ECSL:

(a) around May 2000, when EWS offered ECSL rates significantly higher than rates that EWS had previously offered ECSL;

(b) the period between May 2000 and November 2000 when EWS offered significantly lower rates to other customers; and

(c) during the same time period, when active contractual negotiations between the two parties ceased and ECSL was not offered price reductions similar to those offered to other customers of EWS."

(emphasis added).

It is this last constituent element of the price discrimination which ECSL says EWS is seeking to ignore. Mr Beard characterised EWS's position as accepting paragraphs (a) and (b) of B21 but closing their eyes and pretending that (c) was not there.

ECSL claims that since the ORR established that it was the victim of price discrimination, it is entitled to claim losses as a result of an overcharge for the whole period during which coal was hauled for it by EWS, i.e. from July 1999 until November 2001.

In our judgment, having analysed the arguments, neither party is wholly right or wrong.

ECSL argues that in applying the test for rejection of a claim or part of a claim under Rule 40 we must err in its favour in cases where there is any doubt. With that in mind, for the purposes of this application, we accept (albeit without deciding the point) ECSL's argument that the fact that the lower prices were not offered to ECSL may form a constituent part of the price discrimination as established in the ORR Decision. We form that preliminary view in part relying on paragraph B21 of the ORR Decision, referred to above, and also, by way of further example, from paragraph B65, which states:

"…ECSL was clearly placed at a competitive disadvantage when competing against EWS, compared to the scenario that would have prevailed had EWS been willing to treat ECSL in a non-discriminatory manner (i.e. had it offered ECSL similar rate reductions to those it had offered to EME)."

At the hearing, Mr Brealey submitted that the core question for the Tribunal to decide was: "Did the regulator only determine that the 2000 rates were contrary to section 18?" Our answer to that question is - not necessarily. The May 2000 rates alone were not the only factor which led the ORR to conclude that section 18 had been infringed. The finding was one of price discrimination (which necessarily implies a comparison of two or more different sets of prices) and not a finding that the May 2000 rates were excessive.

If it is correct to conclude that EWS should have offered the lower prices to ECSL, ECSL will presumably be entitled to claim some overcharge. However, that is a point that will ultimately need to be decided at trial, and in order to prove and quantify the overcharge, ECSL will presumably also need to establish, inter alia, precisely what prices should have been offered to it, when they should have been offered and from what date they should be deemed to have applied.

At this stage of these proceedings, we conclude that it is at the very least arguable that the lower prices offered to BE and EME should also have been offered to ECSL and that EWS's failure to do so arguably constitutes an element of the price discrimination as found in the ORR Decision. For present purposes, we do not have to put it any higher than that. The test to be applied under Rule 40 is whether the claim is bound to fail. It is in our judgment at least arguable that EWS should have offered the lower prices to ECSL, and therefore this part of the claim is not bound to fail.

However, we agree with EWS that the unlawful price discrimination as found in the ORR Decision is specifically limited in time to the period from May 2000 to November 2000. There is, in our view, no getting round what is said explicitly in paragraph B139 of the Decision, that "the discrimination identified in this Decision is not discrimination against ECSL overall, but discrimination against ECSL during a particular time period". This is further reinforced by, for example, paragraphs B58, B90, B100 and B139 of the ORR Decision, all of which are unambiguous in saying that the price discrimination as found by the ORR relates to the specific period of time from May to November 2000.

If, following what is said above, we assume that a price 'X' should have been offered to ECSL on, for the sake of argument, 1 May 2000, and that it should have been immediately effective on that date, the overcharge to which ECSL would potentially be entitled would be the actual prices charged, less X, for all periods from 1 May 2000 onwards. Under section 47A(1) of the Act a claimant may only claim for loss and damages suffered "as a result" of the established infringement. We note the comments of the Tribunal in BCL v BASF, cited above, at paragraph [33] that:

"In considering the meaning and effect of any part of section 47A, in our view the proper approach is to consider the section as a whole, rather than to look at individual subsections in isolation".