Textual Amendments
37.In this Part of this Schedule, “consensual settlement” means an agreement relating to a dispute about loss or damage arising from an infringement of competition law which—
(a)is reached through a consensual dispute resolution process,
(b)is made between—
(i)an infringer or a person who has acquired an infringer’s liability in respect of the infringement (whether by operation of law or otherwise) (“the settling infringer”), and
(ii)a person who suffered the loss or damage or a person who has acquired such a person’s right to make a claim in respect of the loss or damage (whether by operation of law or otherwise) (“the settling complainant”), and
(c)entirely resolves the dispute between the settling infringer and the settling complainant.
38.(1)This paragraph applies in relation to proceedings to recover contribution under section 1 of the Civil Liability (Contribution) Act 1978 or section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 where contribution is to be recovered in respect of loss or damage suffered by a person as a result of an infringement of competition law.
(2)The amount of contribution that one person liable in respect of the loss or damage may recover from another must be determined in the light of their relative responsibility for the whole of the loss or damage caused by the infringement.
(3)The determination of that amount must take into account any damages paid by the other person in respect of the loss or damage in accordance with a consensual settlement.
(4)The following have effect subject to this paragraph—
(a)section 2(1) of the Civil Liability (Contribution) Act 1978 (assessment of contribution);
(b)section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (contribution among joint wrongdoers).
39.(1)Where loss or damage arising from an infringement of competition law is the subject of—
(a)a consensual settlement, and
(b)a competition damages claim by the settling complainant,
the amount of the settling complainant’s claim is reduced by the settling infringer’s share of the loss or damage.
(2)Sub-paragraph (1) has effect regardless of the terms of the consensual settlement.
40.(1)Where loss or damage arising from an infringement of competition law is the subject of a consensual settlement, the settling complainant ceases to have a right of action against the settling infringer in respect of the loss or damage.
(2)Sub-paragraph (1) has effect regardless of the terms of the consensual settlement.
(3)Sub-paragraphs (1) and (2) do not apply where—
(a)an undertaking other than the settling infringer is liable to pay damages to the settling complainant in respect of loss or damage which arises from the infringement,
(b)that undertaking is (or, if there is more than one, those undertakings are) unable to pay damages corresponding to the outstanding amount of the settling complainant’s claim, and
(c)the settling infringer’s liability for that amount is not expressly excluded by the terms of the consensual settlement.
41.(1)Where—
(a)loss or damage arising from an infringement of competition law is the subject of a consensual settlement,
(b)it is also the subject of a competition damages claim by the settling complainant, and
(c)an undertaking other than the settling infringer is liable to pay damages to the settling complainant in respect of the loss or damage that is the subject of the claim,
that undertaking may not recover contribution from the settling infringer in respect of the loss or damage under section 1 of the Civil Liability (Contribution) Act 1978 or section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.
(2)Sub-paragraph (1) has effect regardless of the terms of the consensual settlement.
(3)The following have effect subject to this paragraph—
(a)section 1 of the Civil Liability (Contribution) Act 1978;
(b)section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.]