Illegal counterfactuals: bringing in new claims by the backdoor? – Competition Bulletin from Blackstone Chambers
‘It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful elements: see e.g. Albion Water Ltd v Dwr Cymru [2013] CAT 6. In a normal case, C will claim damages, arguing – let’s say – that D abused a dominant position by imposing discriminatory prices. D defends the claim on the basis that, absent any abuse, it would have set prices at a certain (high) level. C replies that those prices too would have been discriminatory – i.e. the counterfactual is inappropriate.’
Competition Bulletin from Blackstone Chambers, 24th February 2016
Source: www.competitionbulletin.com
