HP-2020-000016 - [2025] EWHC 1451 (Ch)

It follows from my conclusions on liability that it is necessary to determine the loss suffered by Cabo as a result of MGA’s exclusionary campaign, in breach of the Chapter II prohibition and Article 102 TFEU, and MGA’s unjustified threats of patent infringement proceedings.

As indicated at the start of this judgment, the parties’ positions on causation and quantum were poles apart. Cabo contended that, but for MGA’s conduct, Worldeez would have been a successful and profitable product, both in the UK and internationally, and that Cabo would have gone on to generate additional revenue from licensing deals. Cabo’s initial claim for lost UK and international profits, and lost licensing revenues, was for over £170m. That had reduced to between £51–65m by the end of the trial. Cabo relied on quantum modelling by Mr Colley, together with the factual and toy expert evidence.

MGA submitted that Cabo could not show that Worldeez would have been profitable (whether in the UK or internationally) or would have generated any licensing revenues in the absence of MGA’s conduct, and that the claim for damages should therefore fail. MGA put its submissions on essentially two bases. The first was that Cabo could not show on the balance of probabilities that it would have traded profitably, on the basis of the factual and toy expert evidence as to the quality of the product, extent of initial retailer support, the dynamics of the toy market and the sales volumes, revenue volumes and capital required to break even during 2017. Secondly, MGA relied on Mr Parker’s quantum models to submit that Cabo would have enjoyed very limited profitability on even generous assumptions as to its success, and would have suffered losses on more realistic assumptions. To the extent necessary, MGA relied on Mr Davies’ approach to valuation issues.

The parties approached the issues of causation and quantum in very different ways, both as a matter of legal principle and as a matter of evidence. It is therefore necessary to start by considering a number of issues of legal principle, before addressing the issues between the parties on the evidence.