Osborne Clarke obtains permission to appeal to the Supreme Court in cartel case

In the long-running cartel damages case of Granville Technology Group Ltd v LG Display Co Ltd, the Supreme Court has granted the claimants permission to appeal against the Court of Appeal's judgment on downstream pass-on. 

Osborne Clarke has represented the claimants, Granville Technology Group and OT Computers, throughout their damages claim relating to the liquid crystal display ("LCD") cartel, as well in claims relating to dynamic random-access memory ("DRAM") and cathode-ray tube ("CRT") cartels, before the Competition Appeal Tribunal, the Commercial Court and the Court of Appeal.

The LCD case arose out of the European Commission's finding that a cartel existed between October 2001 and February 2006 in the worldwide market for thin film transistor LCD panels, which are the screens used in computer monitors, notebooks and televisions. The European Commission fined the LG defendants €215 million for their participation in the cartel.

The claim was one of the first cartel damages claims to go to a full trial. While the claimants had been successful in the High Court judgment in their claim for damages, they appealed the judgment on the basis that it significantly undervalued their loss.

On appeal, the claimants challenged the trial judge's approach on three principal grounds:

• that he had wrongly applied a principle of "erring on the side of under-compensation" when assessing damages;
• that he had made clear errors in assessing the overcharge caused by the cartel; and
• that he had failed to apply the correct legal test when determining the extent to which the claimants had passed on the overcharge to their own customers.

In a judgment dated 1 April 2026, the Court of Appeal agreed with Osborne Clarke's clients that the judge had made an error of law when assessing the overcharge and the level of downstream pass-on by "erring on the side of under-compensation". 

However, the Court of Appeal rejected the claimants' arguments relating to the legal test for pass-on.  It is this aspect of the decision that will now be reopened in the Supreme Court following the grant of permission on 4 August 2026.

Osborne Clarke comment

In competition damages claims, defendants will almost always argue that claimants have "passed on" any loss they suffered by increasing prices to customers or by making other adjustments or costs savings. While in some scenarios, whether losses have been passed on is clear-cut, in many cases the issue of pass-on is fiercely disputed and difficult questions arise as to what evidence is sufficient to establish pass-on. In particular, disputes have arisen as to the role of economic theory and inferences in fulfilling the burden of proof.

This is not the first time that the Supreme Court has considered the issue of pass-on in competition law claims but, given the inconsistent approach of the lower courts in subsequent decisions, there remains plenty of scope for further clarification. This will therefore be an important judgment for competition law claims in England.

Osborne Clarke's team

Osborne Clarke's competition litigation team was led by Andrew Bartlett. The counsel team include Thomas Raphael KC (20 Essex Street), Jon Turner KC and Stefan Kuppen (of Monckton Chambers).