Abuse of Dominant Position in UK Law

It is important to notice that it is the imposition of unfair prices, not high prices, which can constitute an abuse. All that is said is that the rates are fixed at 10% of the bookmaker's gross profit or 1.5% of the bookmaker's turnover, that the cost of preparing the Pre-Race Data is approximately £4 million per year and that BHB's total income from data licensing was stated in 2002 to be expected to amount to £600 million over 5 years, that is to say, about £120 million each year.

During the course of his submissions, Mr. Segan sought to identify other possible relevant markets. One was the market restricted to MNOs who permitted Gateways on their network. The first objection to that analysis is that it was not then pleaded.

I have to bear in mind, when considering whether I should have regard to the proposed amended particulars of claim, the overriding objective of enabling the court to deal with cases justly and at proportionate cost. That overriding objective includes, so far as is practicable, ensuring that the parties are on an equal footing, amongst other things.

It would be undesirable for me to refuse interim injunctive relief, if PML is otherwise entitled to it, simply on the footing that this point has been raised at such a late stage, particularly since it has been addressed in argument, albeit on the evidence presently before the court (which is not directly addressing this issue of alleged abuse of dominant position in the call origination market).

A breach of the duty imposed by Article 86 not to abuse a dominant position in the common market or in a substantial part of it, can thus be categorised in English law as a breach of a statutory duty that is imposed not only for the purpose of promoting the general economic prosperity of the common market but also for the benefit of private individuals to whom loss or damage is caused by a breach of that duty.

What, with great respect to those who think otherwise, I do regard as quite unarguable is the proposition, advanced by the Court of Appeal itself but disclaimed by both parties to the action: that if such a contravention of Article 86 gives rise to any case of action at all, it gives rise to a cause of action for which there is no remedy in damages to compensate for loss already caused by that contravention but only a remedy by way of injunction to prevent future loss being caused.

Second, it is said that the refusal to grant a patent licence to VIA either at all or on lawful and/or reasonable terms is an abuse of a dominant position contrary to Article 82 and/or section 18, and Intel is not entitled to the relief sought by it in these proceedings.