Nexans France SAS & Anor v London Array Ltd & Ors (Re Permission to Appeal)

Factual and Procedural Background

This is an application for permission to appeal to the Court of Appeal against a judgment of the Competition Appeal Tribunal ("The Tribunal") dated 10 October 2025. The applicants are Company A and Company B. The respondents are members of a joint venture that undertook construction of a windfarm project ("Project P") and include Company C, Company D, Company E, Company F and Company G. The Tribunal found that the respondents paid an unlawful overcharge for certain high-voltage power cables (described as "Export Cables" and "Inter-array Cables") supplied by Company H, a company in the same corporate group as the applicants. The Regulatory Authority had found that a worldwide cartel concerning high-voltage submarine and underground power cables existed (Case AT.39610 - Power Cables (2 April 2014), "the Decision").

The Tribunal concluded there was no overcharge claim sustained for Inter-array Cables (no appeal against that finding) but found an overcharge on Export Cables. The applicants seek permission to appeal the Tribunal's findings on liability, causation and quantification, advancing four principal grounds. The Court of Appeal refused permission to appeal.

Legal Issues Presented

1. Whether the Tribunal erred in finding that Company A (and Company B) and Company I agreed a floor price affecting Company H's bid, contrary to the Decision or as procedurally unfair or irrational (Ground 1).
2. Whether the Tribunal erred in finding that Company J's bidding affected Company H's price and that Company A/B knew Company J was submitting a non-genuine bid, as irrational or procedurally unfair (Ground 2).
3. Whether the Tribunal erred in its counterfactual approach by declining to apply a "balance of probabilities" standard regarding individual bidders when assessing causation (Ground 3).
4. Whether the Tribunal erred in relying on a "group to group" (G2G) averaging econometric exercise to infer causation and quantify overcharge (Ground 4).

Arguments of the Parties

Applicants' Arguments

• Ground 1: The Tribunal's finding that Company A/B and Company I agreed a floor price was inconsistent with the Decision (which records Company I's participation as ending earlier), procedurally unfair (not pleaded or not given opportunity to answer), and, alternatively, irrational or unevidenced.
• Ground 2: The Tribunal's finding that Company J's bid was a cover bid affecting Company H's price was unsupported by evidence and procedurally unfair because Company J was not given the opportunity to respond and the Decision contains no such specific finding.
• Ground 3: The Tribunal should have assessed, on the balance of probabilities, whether any particular counterfactual bidder would have submitted a lower bid; it was wrong to rely on a generic finding that "some" manufacturer likely would have done so.
• Ground 4: The Tribunal wrongly relied on a G2G econometric average across projects (including post-2018 and turnkey projects) contrary to authority that prefers project-specific analysis in bespoke tenders.

Respondents' / Tribunal Position (as summarised by the Court)

• The Decision and its operative findings were binding on the Tribunal with respect to Company A/B; the Decision recorded communications between Company A/B and Company I relevant to the London Array tender.
• The Tribunal was entitled to draw adverse inferences from the applicants' failure to adduce evidence about how the cartel operated and about internal mechanisms linking Company A/B and Company H.
• The Tribunal's counterfactual approach was an evaluative exercise appropriate on the evidence: it was entitled to find it "entirely likely" that some additional competition would have emerged absent the cartel.
• The Tribunal was entitled to use both I2G and G2G econometric evidence, giving appropriate caution to each methodology, and to make fact-based choices about comparator projects and adjustments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case AT.39610 - Power Cables (2 April 2014)	Regulatory finding of cartel, operative determinations and supporting reasoning used as binding findings in follow-on proceedings.	The Court treated the Decision (including specific paragraphs and annexes) as binding on the Tribunal for relevant findings against Company A/B and to inform the Tribunal's factual findings about cartel operation and specific communications.
Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041	Principles on pleading and procedural fairness (parties should be put on notice of allegations to which they must respond).	Relied on by applicants to argue pleading deficiencies; Court concluded the Tribunal's pleading referencing the Decision was sufficient to put Company A/B on notice.
Popely v Ayton [2022] EWHC 3217 (Ch)	Pleading and procedural fairness principles concerning findings going beyond pleaded case.	Cited by applicants; Court distinguished facts and held no procedural unfairness where the Tribunal relied on the Decision and the applicants had access to unredacted material.
Vogon International Ltd v Serious Fraud Office [2004] EWCA Civ 104	Limits on making unpleaded findings and requirement to give parties opportunity to answer.	Applicants relied on it; Court held the circumstances differ and that the Tribunal remained within proper bounds when construing the Decision.
Le Patourel v BT plc [2025] EWCA Civ 1061	Consideration of adverse inferences (example where no adverse inference was drawn).	Referenced in context; Court noted case law on adverse inferences and upheld the Tribunal's decision to draw such inferences on the facts here.
Prest v Petrodel Resources Ltd [2013] UKSC 34	Permissibility of drawing adverse inferences in appropriate circumstances.	Used to support the proposition that the Tribunal was entitled to draw adverse inferences from the applicants' failure to adduce relevant evidence.
Royal Mail Group Ltd v DAF Trucks Ltd [2024] EWCA Civ 181	Appellate restraint on factual findings and presumptions in cartel damages cases; relevance of drawing inferences where defendants do not adduce evidence.	The Court relied on the case to support limits on appellate intervention and the Tribunal's entitlement to rely on presumptions where appropriate and/or the evidence.
BritNed Development Limited v ABB AB & Another [2019] Bus LR 718	Warning about averaging across bespoke, project-specific tenders; preferring project-specific analysis where appropriate.	Applicants relied on it to challenge G2G averaging; Court distinguished BritNed on its facts and endorsed the Tribunal's use of both methodologies with caution and fact-specific evaluation.

Court's Reasoning and Analysis

The Court analysed each ground in turn, applying the Decision and principles of appellate restraint.

Ground 1: The Court held the Tribunal was bound by the operative parts and supporting reasoning of the Decision. The Decision included explicit findings that Company A/B contacted Company I between 5 and 7 November 2008 to discuss pricing for the Project P bid; annex entries formed part of the Decision. The Tribunal therefore properly treated those findings as binding against Company A/B. The Court accepted the Tribunal's explanation that Company I's apparent continued participation post-dating its leniency application was consistent with Commission practice (to "play along" to preserve investigation integrity). The Tribunal was entitled to draw adverse inferences from Company A/B's failure to adduce evidence about cartel operation and links with Company H; that was a factual judgment not open to appellate interference.

Ground 1 procedural complaint: The Court found the pleaded claim referenced the Decision and gave sufficient notice of the issues; any redactions in published Decision did not deny Company A/B access to unredacted material and there was no procedural unfairness to Company I because no separate finding of liability was made against it by the Tribunal.

Ground 2: The Tribunal relied on the April 2008 email (Decision paragraph cited) and related contextual findings to conclude Company J's early bid was a cover bid and influenced the tender. The Court held these were evidential determinations well within the Tribunal's fact-finding discretion; the Tribunal was entitled to draw adverse inferences from absence of explanatory evidence and there was no procedural unfairness to Company J in a follow-on claim not brought against it.

Ground 3 (counterfactual): The Court accepted the correct legal test required proof on the balance of probabilities that actionable harm occurred. It held the Tribunal's evaluative counterfactual—finding it "entirely likely that some manufacturer" would have submitted a lower bid absent the cartel—was a permissible exercise of judgment given the nature of the evidence and the hypothetical character of counterfactual enquiries. The Tribunal was not required to identify a particular alternative bidder on the balance of probabilities.

Ground 4 (econometrics/G2G): The Court emphasised appellate restraint on challenging factual evaluations and expert assessments. The Tribunal correctly recognised limitations of both I2G and G2G approaches, considered both methodologies and made fact-specific choices about comparator selection and adjustments. The Court distinguished BritNed on the facts and concluded the Tribunal's nuanced use of G2G evidence, with caution, was within its discretion.

Overall: The Court repeatedly emphasised that many contested points were factual assessments and evaluations of expert evidence where appellate intervention is limited. The Tribunal's reasoning on binding effect of the Decision, adverse inferences, counterfactual assessment and econometric methodology was upheld.

Holding and Implications

PERMISSION TO APPEAL REFUSED

Direct effect: The Tribunal's judgment (including its findings of an overcharge in respect of Export Cables and its approach to causation and quantification) stands. No appellate relief was granted and the application for permission to appeal is dismissed.

Implications: The Court treated the Regulatory Authority's Decision as binding in follow-on civil proceedings where operative findings and supporting reasoning are relevant; it confirmed the Tribunal's discretion to draw adverse inferences where a cartel defendant fails to adduce explanatory evidence; it affirmed the permissibility of evaluative counterfactual reasoning and careful use of competing econometric approaches. The Court identified no new legal principle to be established beyond application of established appellate restraint to factual and expert-evidence assessments.