Salmon farmers seek to have retailers' damages claims thrown out of court
Norwegian salmon farmers who deny price fixing allegations have asked the UK’s Competition Appeal Tribunal to throw out claims by several UK supermarkets for £675 million in damages, arguing it does not have jurisdiction to hear the case, Global Competition Review (GCR) has reported.
The lawsuits, filed in March last year by Asda, Iceland, Marks and Spencer, Ocado, Morrison’s, Aldi and Co-op, are based on an ongoing European Commission investigation.
GCR reported that Daniel Jowell KC, counsel to the world’s largest Atlantic salmon farmer, Mowi, told the tribunal that EU infringement decisions are not something that the UK tribunal can give “any weight to” following Brexit, nor is it obliged to hear any of the evidence and issue a ruling on such claims.
No sanctions yet
Jowell said the supermarkets that brought the damages action had no doubt anticipated that the alleged cartel would have been established by an EU infringement decision by now. But no sanctions have yet been issued – and a parallel investigation by the US Department of Justice was discontinued without any finding of an infringement, Jowell added.
It is possible the commission won’t issue any infringement decision at all. Even if it does – and Mowi will “vigorously contest any finding of a cartel” – that would not bind the tribunal nor the addressees as far as the UK is concerned, GCR reported Jowell as saying.
Mowi, together with Grieg Seafood and Scotland’s second-largest producer Scottish Sea Farms, are all seeking to strike out the claims brought against their UK companies.
Hear case in Norway
Those three salmon producers and fellow defendants Bremnes, Cermaq, Lerøy and SalMar also argue that the claims against their Norwegian parent companies should be heard in Norway. Scottish Sea Farms is owned 50-50 by Lerøy and SalMar.
Jowell said that Norway is where all of the alleged unlawful acts occurred and where the immediate harm to the market allegedly took place. “Norway is clearly a more appropriate forum” for the claims, he said.
GCR reported that Anneli Howard KC, counsel to the claimant supermarkets, said it was “extraordinary” to claim that UK customers affected by a cartel that took place outside the UK cannot sue in London for the higher prices they paid in the UK.
Even if the “epicentre” of the conspiracy took place in another country, its effects would have “reached out” across its borders, Howard said.
Though any EU infringement decision post-Brexit does not bind the tribunal, this does not mean it has no weight at all as it is still “highly relevant” and “persuasive”, Howard said.
Class action
The legal action by the supermarkets is one of two being pursued against salmon farmers in the Competition Appeal Tribunal.
A collective action by a group representing consumers seeks up to £382 million for those who are said to have overpaid because of alleged breaches of competition law by the proposed defendants: Mowi and its subsidiary Mowi Holdings, SalMar, Lerøy, Scottish Sea Farms (owned by SalMar and Lerøy) and Grieg.
The action has been filed on behalf of UK consumers by Waterside Class Limited, a company set up to bring the claim. Its sole director and representative is Anne Heal, a former director of regulatory affairs at BT (British Telecom), reported to be a passionate advocate for consumers.
Class action lawsuits involving similar allegations in the US and Canada were settled out of court, without admission of any wrongdoing. Salmon farmers have denied all allegations that they colluded to push up prices.
