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

There was considerable debate, in both the opening and the closing submissions, as to the approach to be taken to the causation of loss. By the time of the oral closing submissions, however, the position was essentially common ground.

Cabo’s cause of action under the Chapter II prohibition and Article 102 TFEU is treated as a breach of statutory duty. In order to complete the cause of action for that breach, a claimant must prove that some actionable harm or damage was caused by that breach. That is sometimes expressed as the damage which forms the “gist” of the tort action. Recovery is not limited to the “gist damage”, but the claimant must satisfy the test for causation in relation to (at least) the “gist damage” before the court can consider the quantification of the claimant’s actual loss: Royal Mail v DAF Trucks [2023] CAT 6, §§167–168 and §173.

Causation of loss or damage must be established on a balance of probabilities, and must be assessed by reference to the type of harm alleged by the claimant. A claimant cannot rely on a particular type of actionable damage as completing its cause of action, if that has not been pleaded and addressed in the evidence before the court: see the CAT in Royal Mail v DAF, §§172–173.

At some points in its earlier submissions, Cabo appeared to argue that once its cause of action had been established by showing some actionable damage, it was not necessary to prove causation on a balance of probabilities for any further head of loss claimed. The authorities consistently establish, however, that causation of any head of loss must be established on a balance of probabilities: see the comments of Toulson J and then Toulson LJ in Fyffes Group v Templeman [2000] 2 Lloyd’s Rep 543 and Parabola Investment v Browallia [2010] EWCA Civ 486, [2011] QB 477, considered in more detail at §§459–460below, as well as the Court of Appeal in Royal Mail v DAF, considered at §462 below. By the time of the oral closing submissions, this was common ground.

On the same basis, even where a tort does not require actionable damage to be shown to complete the cause of action, if damages are claimed it will still be necessary to establish causation in relation to each head of loss. That is the case for the patent threats claims in these proceedings. An action under s. 70 of the 1977 Act is a statutory tort of strict liability, which does not require proof of actual damage in order to be actionable: Global Flood Defences v Van den Noort [2015] EWHC 2548 (Pat), §34. An injunction or declaration can therefore be claimed irrespective of proof of loss (and in this case Cabo does claim a declaration in addition to damages, which is addressed separately below). Where damages are claimed, as they are here, they are assessed on the usual tortious basis, which requires proof of causation of the loss on a balance of probabilities.