09/02/2024

Rare cartel follow-on claim secures UK damages from global price-fixing by LCD makers

The Commercial Court has handed down judgment in Granville Technology Group Ltd v Chunghwa Picture Tubes Ltd & Ors [2024] EWHC 13 (Comm), marking just the third cartel damages claim to reach final judgment in the UK (after BritNed and the Royal Mail trucks claim).

We all now use LCD computer screens at home and in the office, but many people will have been unaware of a major cartel at work in the early 2000s, in which the makers of screens agreed to raise prices. This was punished by regulators across the world.

A claim for cartel follow-on damages was brought by Granville and OT Computers (now insolvent former UK computer manufacturers ‘Time’ and ‘Tiny’) against LG Display of South Korea and other defendants, based on the 2010 European Commission decision, and was heard in October–November 2023. The judgment addresses a set of important issues previously undecided.

In this case, LG Display’s liability defences failed. The court – HHJ Pelling sitting as a High Court judge in the Commercial Court – rejected arguments that the claim was time-barred. The limitation arguments involve questions of the different standards required of a liquidator as compared to an active company when acquiring constructive knowledge under s 32 of the Limitation Act 1980, applying and extending previous decisions (OT Computers v Infineon [2021] QB 1183).

The court also rejected arguments that substantial parts of the claim (where products had first been put onto the market outside the EEA) were either governed by foreign laws, and should therefore fail, or otherwise fell outside the territorial scope of EU law. In doing so it has resolved important issues which were left outstanding by the previous Court of Appeal decision in Iiyama v Samsung [2018] EWCA Civ 220.

The court found that the cartel, which had operated from 2001 to 2006, had resulted in an overcharge of 4%–8% for notebooks and LCD monitors, and 14% for TVs. It considered the appropriate approach to quantification of overcharge and held that a regression analysis was preferable to a trend line extrapolation. The court held that there was 100% upstream pass-on to the claimants. It further held that the claimants were likely to have passed on 65% of that overcharge to their downstream customers in the form of higher prices. The court accepted, however, that the downstream pass-on gave rise to a substantial secondary claim for lost profits from lost sales due to higher retail prices, so that downstream pass-on did not defeat the claim.

The claimants were represented by Thomas Raphael KC, leading Stefan Kuppen of Monckton Chambers, and instructed by Osborne Clarke.