The UK Competition Appeal Tribunal recently held that there was no presumption under Article 48 of the Charter of Fundamental Rights of the European Union that each defendant in a multi-defendant private action was entitled to file their own expert reports. Consequently, the CAT ordered that all defendants had to rely upon a single joint expert in the field of competition economics. The ruling was delivered on November 2, 2023 against defendants in PSA Automobiles SA & Other v Autoliv AB & Others, a standalone claim for damages brought by certain car manufacturers against multiple defendants who entered into settlements, in 2017 and 2019, with the European Commission in which they admitted that they colluded on prices and the supply of seatbelts to several auto manufacturers, not including PSA.
While the defendants argued that the competition damages claim was quasi-criminal in nature that engaged Article 48 of the Charter, the Tribunal was doubtful that a private action for damages was in the same category as quasi-criminal proceeding brought by competition authorities. More importantly, the Tribunal disagreed that there was even a presumption that multi-defendants were entitled to their own experts in a competition proceeding simply because Article 48 was engaged. The Tribunal reasoned that, in accordance with Rule 4 of the CAT Rules 2015, it was responsible for ensuring that each of its cases was dealt with “justly and at proportionate costs” – considerations that include directions given by the Tribunal regarding the provision of expert evidence under CAT Rule 53. In determining what was “just” in the current case, the Tribunal had to consider whether there was a real risk that a conflict of interest existed regarding matters involving expert evidence, and, based on the evidence, the Tribunal found that no material conflict of interest currently exists between the defendant groups in the field of competition economics. The Tribunal also noted that contribution and apportionment of damages were not pleaded issues in the case and that the claimants had submitted to the Tribunal that the question of apportionment would not arise at trial. For these reasons, the Tribunal concluded that having a single joint expert for all defendants was appropriate and justice would best be served by having a single expert shared by the defendants.