No Restitutionary Remedy for the Victims of the Vitamins Cartel: The Decision of the English Court of Appeal in Devenish Nutrition Ltd v Sanofi-Aventis SA (France)

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Stephen Wisking, Nov 29, 2008

The Court of Appeal’s decision makes is clear that an account of profits in a cartel case will only be available in very exceptional circumstances (for example, difficulties of proof of damages which are not the fault of the claimant). It will be rare for an account to be necessary to do justice in the case as the courts will approach the calculation and proof of compensatory damages on a pragmatic basis. The Court, in line with the European Commission’s White Paper on Private Enforcement, confirmed compensatory damages as the default basis of recovery in cartel damages cases. Moreover, while there was a difference of views as to the whether such an account of profits gave rise to particular problems where there were multiple claimants, the Court did not clearly set out how such issues could be resolved.