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A Small Question of Causality and the Complexities of ‘Pass-On’ under English Law – Recent Developments

Aiste Slezeviciute


Sainsbury’s Supermarkets Ltd v MasterCard Incorporated and Others, 1241/5/7/15 (T), judgment of the United Kingdom Competition Appeal Tribunal of 14 July 2016
Despite a steep increase in actions for competition damages before the English courts in the last decade, the scope of one of the key elements of causation – the ‘pass-on’ defence – until recently remained largely unascertained. The courts have recognised the defence in the past, but the legal test has not been established until recent Sainsbury’s v MasterCard judgment of the Competition Appeal Tribunal rendered in July 2016. The judgment has been hailed a landmark because of the award of substantial damages plus interest to the claimant, but also for the most comprehensive discussion on ‘pass-on’ defence under the English law to date. However, the ruling leaves more questions open than it answers. The judgment also does not sit squarely with the EU Damages Directive. This case note looks into the position on the ‘pass-on’ defence established by the Sainsbury’s v MasterCard judgment, the questions that it leaves unanswered and the changes that can be expected following the implementation of the EU Damages Directive in the UK.

Aiste Slezeviciute, solicitor, England and Wales, Shepherd and Wedderburn LLP; PhD student, University of Edinburgh Law School. For correspondence: <>. DOI: 10.21552/core/2017/1/15


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