UK: Standard & Poor's: Next Steps And The Right To Claim Damages

Last Updated: 9 August 2011
Article by Rachel Iley


On 16 May 2011, the European Commission confirmed that Standard & Poor's ("S&P") has offered concessions in order to settle its 2-year long investigation into the licensing of US ISINs. If accepted, the Commission will make these commitments binding on S&P for 5 years. No infringement decision would be adopted, however. This would have an impact on the ease with which third parties can claim damages (itself a motivation for agreeing to commitments) but does not affect their right to claim damages for any loss they have suffered as a result of S&P's licensing policy to date.

This note summarises the next steps and some procedural and practical pointers for those considering whether to launch a damages action against S&P.

The proposed commitments

To recap briefly, the Commission has concerns that the way in which S&P licences its US ISINs, and in particular the prices it charges, infringe EU rules that prohibit companies with a dominant market position from engaging in abusive conduct (Article 102 of the European Treaty1).2

S&P has offered to change its EU pricing policy by (i) charging direct users (information service providers and financial institutions) a maximum of US$15,000 p.a. (adjustable annually in line with inflation) and (ii) abolishing charges to indirect users that source ISINs via information service providers.3

What happens next?

The Commission is asking third parties to comment on the concessions it has negotiated before making them binding on S&P. The consultation period is open until 15 June 2011 4

The Commission will then take any comments into account in considering whether to accept or vary the commitments. The Commission can renegotiate the commitments or even abandon them altogether (although this is rare). However, if the Commission considers S&P's proposed concessions to be adequate, it will make the commitments binding for 5 years, by adopting a decision under Article 9 of the EU's antitrust Regulation 1/2003.

Commitment decisions do not conclude that there has been an infringement of EU antitrust rules, nor result in a fine. However, they do legally bind the companies concerned. If a company breaks its commitments, the Commission can fine it up to 10% of annual turnover, without having to find a competition law infringement.

The legal right to claim damages

Under European law, individuals who have suffered loss as a result of anti-competitive conduct have a right to claim damages from the infringing party. 5 However, it is for national systems to establish effective procedural rules.

Section 47A of the Competition Act 1998 provides a right to any person who has suffered loss or damage as a result of an infringement of UK or EU competition law to bring civil proceedings in the UK to claim damages for losses caused by anti-competitive behaviour.

Damages are intended to provide financial compensation for the loss suffered. It may even be possible to claim for lost sales, e.g. where these result from the higher prices charged. A claimant can also seek interest on any grant of damages from the date the infringement occurred to the date of the court's judgment. Generally, the losing party will be ordered to pay a significant portion of the costs incurred by the successful party to the litigation.

Type of action to bring

The advantage of having a prior infringement decision is that claimants can bring a "follow-on" action in the specialist Competition Appeal Tribunal, which is bound by the decision that competition law has been breached.

Where commitments are entered into there is no infringement decision. However, this does not prevent claimants from launching a "standalone" action for damages in the Chancery Division of the High Court. In addition to proving that the breach caused them loss (i.e. their loss would not have happened 'but for' the competition breach) and the amount of loss suffered, a claimant in a standalone action will also have to obtain and submit evidence to prove the breach itself. That said, parties do bring damages claims in the High Court and, in any event, many cases settle before actually reaching court. The threat and/or commencement of actions are often used as an additional negotiating tool.


Claims for competition breaches in the High Court generally must be brought within 6 years of the date the claimant suffered loss (subject to some exceptions).

Procedural steps

Before issuing a claim, under the English court rules the claimant is expected to send pre-action correspondence in the form of a letter before action which details the nature of the intended claim. This must give the defendant sufficient detail and time (typically 21 days) in which to respond and is intended to give the parties the chance of settling their differences without recourse to the courts.

If the claimant then decides to issue proceedings, the procedure relating to claims in the High Court is governed by the standard English court rules (CPR 1998). Proceedings are started by issuing a claim form, which must contain a concise statement of the nature of the claim and the remedy sought. This is issued by the court at the request of the claimant and must be served on the defendant within 4 months of issue.

Particulars of claim – a more detailed statement of the facts on which the claimant relies, the relief sought including any claim for exemplary damages, and a claim for interest where applicable – must also be served on the defendant. A claim alleging breach of the competition rules must be fully pleaded; otherwise a claim can be struck out.

The defendant then has 14 days (or up to 28 days if it files an acknowledgement of service) to file its defence. This period can be extended if agreed by the parties or ordered by the court. A defence must respond comprehensively to the allegations made in the particulars of claim. The defendant may also wish to make a counterclaim. A defendant will often request further information from the claimant, although the court also has wide powers to order the parties to give additional information and clarify any matter.

After the parties have set out their cases and, typically, a few months after the commencement of proceedings, it is usual for the disclosure of documents to take place. This entails the preparation of a list of documents and the subsequent inspection and provision of copies of them to the other side. Usually a party has to disclose documents (i) on which he relies; (ii) which adversely affect his or any other party's case; and/or (iii) which support another party's case. Documents include emails, minutes, diary entries, photographs, invoices, and audiotapes etc. – in fact, it will cover almost anything. It is therefore important not to create documents which could be unhelpful if they have to be shown to an opponent. The court will sometimes order disclosure prior to the commencement of proceedings, if the potential claimant can show such disclosure will assist in the resolution of the matter. You may wish to consider using this strategy in these circumstances.

Prior to any trial, the parties will need to serve written witness statements of the oral evidence they intend to rely on in relation to any issues of fact at trial. A witness can subsequently be cross-examined on any statement.

In almost all competition cases, it will also be necessary to adduce expert economic evidence relating to matters such as market definition, market power and the amount of the claimed loss. The formal written report by an economist forms a key part of the evidence. It is usual for the parties' respective experts to discuss their reports after service, in order to attempt to identify areas of agreement and experts can also be examined on their evidence.

Practical points

Selecting and briefing the right legal team (both solicitors and barrister(s)) and establishing legal strategy before taking action can be extremely beneficial. It is often possible to gain a strategic advantage (and therefore negotiating leverage) through the early exchanges.

It is also important to appoint an economist up front who can evaluate and compile econometric evidence of causation and the loss suffered, which will inform the particulars of claim and the expert report.

Consider the merits of bringing a joint action with other parties affected by S&P's licensing. For example, where a number of parties have the same interest in a claim, one claimant can bring a representative action on behalf of an identifiable represented class. Alternatively, parties can merely agree to share resources and/or information in preparing their own separate claims.


1 European Treaty on the Functioning of the European Union

2 For details of the Commission's case against S&P, see "Standard & Poor's: Data Licensing in the Spotlight Again...." (January 2009)

3 Commission Notice Summarising the Commitments:

4 For example, EFAMA has already responded to provide its views on the shortcomings of the proposed commitments:

5 ECJ in T-22/02 and T-23/02, Sumitomo Chemical Co Ltd: "Community law considers those remedies as vital in ensuring the full application of Articles 81 [now 101] and 82 [now 102]"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.