Boost for Scottish claimants' case against truck manufacturers in cartel
(C) Christian Lagereek
By Gavin van Marle
UK haulage firms suing truck manufacturers accused of operating a cartel to fix truck prices, received a boost to their case when a Scottish court ruled against defendants’ argument that they are protected by a time limitation. In July 2016, the European Commission found that five of Europe’s largest truck manufacturers – MAN, DAF, Iveco, Volvo/Renault and Daimler – had taken part in a cartel between 1997 and 2011 with the aim of fixing prices for large and medium trucks. A subsequent decision, in September 2017, concluded that Scania was also involved, and in late August this year the EC competition commission fined the Swedish manufacturer EUR880.5m (£1.04bn).
UK haulage companies that bought or leased trucks between 1997 and 2011 are seeking a payout said to be worth up to GBP5bn (£6.1bn) through legal action led by the Road Haulage Association (RHA), which is pursuing a claim on their behalf at the Competition Appeal Tribunal though a collective proceedings order (CPO). Law firms, including Fieldfisher, are handling around 20 separate claims, and the recent judgment in the Scottish Outer Session court found that Fieldfisher clients Glasgow City Council and West Dumbartonshire Council, which had bought trucks, would be able to proceed with their claim. “In claims such as these, the liability is already determined, so the claimant only needs to show causation and loss,” a statement from Fieldfisher said. “The truck manufacturers have been trying to block further claims by arguing they will be time-barred. However, the Scottish Court of Session rejected a prescription (or limitation) strike-out brought by the defendants.
“Scottish and English limitation rules rely on separate legislation, but this ruling means claims can be made in Scotland up until July 2021 and for England up until July 2022. “Although a decision of the Scottish courts is not binding in England, it will be persuasive,” it added. The defence in the Scottish case argued that the councils should have made their claim earlier, given that news of the EC’s investigation into the truck cartel first broke in 2011.
However, Justice Tye noted that the first fines imposed by the EC were not announced until 2016, and said: “I am in no doubt that if a Scottish local authority had attempted to inquire into the existence of a cartel whose activities had affected the prices paid for commercial vehicles of an unspecified nature during an unspecified period of time, it would have been met by a refusal by the companies concerned to provide any information, in order to avoid jeopardising their applications for immunity and leniency. “It is not surprising that, as is common ground, no-one in the United Kingdom raised any proceedings against any of the addressees before the details of the [EC competition commission] decision were announced,” he ruled. Fieldfisher noted there was “still potential for other claimants, including insolvency practitioners who may be managing insolvent companies and companies that operated substantial fleets of trucks as part of their business but are not haulage businesses (such as retailers, food and beverage and fuel companies), to recover damages.
“Realistically, prospective claimants would want the estate to have operated a fleet of at least 50 trucks at any one time during that period for the claim to be viable,” it added.
The RHA’s case is waiting for the Competition Appeal Tribunal to authorise the RHA to act as the representative in the CPO. Once has been granted, it can proceed with the case.
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