Main issues related to expert testimony (Truck Cartel)


As we previously informed you, The Royal Mail Group and the BT  have brought a follow-on claim against companies in the DAF Group for engaging in illegal price fixing.  The Competition Appeal Tribunal is currently grappling with numerous issues related to expert testimony to make a ruling, as they highlighted in their broad outline:

“(1) Causation – did the Infringement cause the Claimants to suffer loss by way of the Overcharge?
(2) The Theory of Harm – both sides’ experts have opined on whether it is “plausible” that the Infringement caused loss to the Claimants, DAF’s expert maintaining that it was not “plausible”.
(3) The Overcharge – if loss was caused, what is the quantum of it? Apart from whether it is appropriate to examine separate “before-during” and “during-after” Infringement models (the Claimants’ preferred approach) or “before-during-after” and “during-after” models (DAF’s approach), there are three main areas of disagreement between the experts in relation to their respective regression models, each of which considerably affects the estimated Overcharge:
(i) The Exchange Rates – whether the models should be run in Pounds or Euros and what should be the applicable rate;
(ii) The Global Financial Crisis between 2008 and 2010 – whether this was such a shock that it needs to be controlled for separately from other demand controls; and
(iii) The Emissions Standards – whether the additional margin achieved on new emission standard trucks was down to the Infringement or other factors, such as willingness to pay.
(4) The Value of Commerce – this is the amount to which the Overcharge percentage is to be applied, and there is a difference between Royal Mail only and DAF as to whether certain truck bodies should be included in that figure.
(5) Complements – if there was an Overcharge, DAF contends that the price of bodies and trailers, which are manufactured by third-parties, would have decreased and the savings that the Claimants thereby achieved should be offset against the Overcharge; the Claimants deny any such effect of the Overcharge;
(6) Resale Pass On – this concerns used trucks sold on by the Claimants; DAF contends that if the price of their new trucks increased as a result of the Overcharge, then the price of used trucks sold by the Claimants would also increase, and that benefit should be offset against the Overcharge.
(7) Supply Pass On – if there was an Overcharge, DAF contends that the Claimants mitigated their loss by passing it on to their customers by increases to the prices they charged for their own products such as postage stamps or telephone line rentals; the Claimants deny that there was any such pass on as a matter of law and/or fact.
(8) Loss of Volume – Royal Mail contends that, if there was supply pass-on, then they suffered a loss of volume in their downstream market sales for which they should be compensated.
(9) Financing Losses – in addition to the Overcharge, Royal Mail claims damages for the cost of financing the Overcharge and there was detailed expert evidence on this issue; the main area of disagreement is whether the weighted average cost of capital (“WACC”) is the best measure of converting historic losses to current values or
whether alternatively there should be interest based on the cost of debt and the foregone returns on short term investments. DAF contends that any such interest charges should be calculated on a simple basis, whereas Royal Mail argues that interest charges should be compounded. BT, by contrast, claims simple interest pursuant to s.35A of the Senior Courts Act 1981.´´*

*Neutral citation [2023] CAT 6 in the Competition Appeal Tribunal

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