Judgment of the Tribunal in connection with applications by the DAF Defendants to: (1) adduce expert evidence from Professor Neven on supply pass-on; and (2) amend their Defences in the Royal Mail and BT proceedings to contend that the Claimants mitigated any overcharge by reducing the costs which they paid to their suppliers.
In relation to (1), the Tribunal refused the DAF Defendants’ application. To allow the additional expert evidence and order the disclosure which Professor Neven would require to conduct his regression analysis would not be a proportionate approach.
As regards (2), the Tribunal held that it is not sufficient for a defendant in the position of DAF to plead a defence of mitigation on the basis of broad economic theory and nothing more, where the effect of that would be to place a heavy onus on a claimant to disclose and explain its financial procedures and operations during the period of the operation of the cartel. There must be some plausible basis in fact for alleging that the claimant would have reduced the amount of the overcharge loss in a manner which amounts to legal mitigation.
