The Competition Appeal Tribunal (CAT) is to consider its first damages claim under section 47A of the Competition Act 1998, arising from a finding of the OFT that the Act has been infringed. The CAT has previously looked only at claims arising from decisions of the European Commission that a breach of the competition provisions of the EC Treaty has occurred.
Healthcare at Home ("HH") is a health care company that provides homecare services for customers who suffer from a range of conditions, one of which is Gaucher disease, a condition involving enzyme deficiency. The drug, Cerezyme, which is used for treatment of Gaucher sufferers, is manufactured by Genzyme. In 2001 the company also began to provide homecare services.
In March 2001, HH complained to the OFT that Genzyme's pricing, which involved charging a sum for Cerezyme that included the cost of homecare services provided by Genzyme, amounted to abuse of a dominant position. The OFT carried out an investigation and found Genzyme guilty of abuse, a decision which was upheld by the CAT, although the original penalty was reduced from £6.8 to £3 million.
Genzyme has yet to respond to HH's current claim, having been granted two extensions of time by the CAT for the submission of its defence. HH is seeking to recover damages under various heads, including loss of margin on actual sales, loss on margin on lost sales caused by existing customers switching to Genzyme's homecare services, loss and damage to the value of HH's business, and exemplary damages.
The issue of exemplary damages is an interesting one, as this form of damages—also known as punitive damages, designed to punish the defendant rather than to repay the losses suffered by the claimant—are not available in Scotland's courts. This raises a question, not addressed by rules which give the CAT the power to hear damages claims, of whether Scottish litigants would gain an advantage by raising claims before the CAT rather than the domestic courts.