Illegal counterfactuals: the Court of Appeal shuts the back door – Competition Bulletin from Blackstone Chambers

Posted May 2nd, 2017 in appeals, competition, consumer credit, news by sally

‘Suppose a defendant to a competition claim runs a defence that, in the counterfactual world in which no anticompetitive conduct occurred, pricing would have been no different; and that the claimant replies, “maybe so, but only because you were at the same time operating some independent anti-competitive scheme, which must also be purged from the counter-factual”. Can the claimant amend his claim to plead the independent anti-competitive scheme raised in his Reply as the basis for a new substantive claim even where it would ordinarily be time-barred?’

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Competition Bulletin from Blackstone Chambers, 28th April 2017