‘We consider that each of the experts did their best to assist the Tribunal and were punctilious in complying with their obligations, as experts, to the Tribunal. All the experts were assisting the Tribunal in determining what would have happened in the counter-factual scenario, which is a difficult issue that involves the weighing and consideration of multiple factors – including the opinion evidence of the experts. The fact that we have not necessarily accepted the opinion advanced by one or more of the experts in no way diminishes the fact that all the experts were, very professionally, doing their best to assist the Tribunal.’ (para 54)
 

The experts had provided a range of scenarios for ‘counterfactual situations’—ie, what would have happened if Cardiff Bus had not behaved anti-competitively? Based on a careful review of the facts, the CAT decided which scenarios it considered most realistic, and then refined some of the calculations. It rejected the claims for loss of a capital asset, loss of a commercial opportunity, wasted staff and management time, and liquidation costs. The award of loss of profits referred only to the bus services that 2 Travel actually operated in the period in question during 2004. The figure of £33,818.79 lies within the range of lost profit estimates that Dr Niels had presented to the CAT as the expert for the defendant.

Says Dr Niels: ‘Follow-on damages cases rarely make it all the way to trial and a judgment, and in this regard the 218-page CAT ruling is to be welcomed as adding to the, as yet limited, case law on the subject. It is encouraging that the Tribunal found the experts helpful. The judgment gives some clarity on how to identify lost profit claims that fit with the facts and with the way the market works, and are not overly speculative.’