England and Wales High Court (Chancery Division) Decisions

Inntrepreneur Estates Ltd ("IEL") was formed in March 1991 as a result of what was referred to at the time as the "pubs for breweries swap" between Courage Ltd (a subsidiary of the Fosters Brewing Group) and Grand Metropolitan plc ("Grand Met"). Courage acquired Grand Met's breweries and brands and the pubs of both companies were put into the newly created IEL which was owned in equal shares by Fosters and Grand Met. (Various different subsidiaries of the main groups have been involved in the history of this matter, and the names of the companies are not always indicative of the group to which they belong. In the interests of simplicity, and I hope without material inaccuracy, I propose to use the names IEL and Courage to represent the interests respectively of landlords and nominee brewers.)

The proposal had been announced in March 1990. Following a reference by the Secretary of State for Trade and Industry in April these were subject to an investigation by the Monopolies and Mergers Commission who reported in October 1990. They expressed concern that the loss of one of the national brewers would significantly increase concentration. They recommended certain modifications for the purpose of remedying the adverse effects. Following this report, the Secretary of State for Trade accepted undertakings given by the parties, which enabled the proposals to go ahead in modified form.

One of the agreements forming part of the arrangements was a "Beer Procurement Agreement" dated 28th March 1991, under which all tied IEL lessees would be required initially to purchase their principal beer requirements from Courage as nominees, at the relevant wholesale list price, and payments would be made by Courage to IEL to compensate in part for the difference between tied rents and open market rents. I will need to look at this agreement in more detail below.

In July 1992 IEL notified their standard lease ("the old lease") to the European Commission for clearance under Article 85 of the Treaty. (Relevant provisions of Article 85, and related EU legislation are set out in Appendix 1). In July 1993 the Commission published a notice indicating its intention to grant retro-active exemption pursuant to Article 85(3), and inviting representations from interested parties. The statement accompanying the notice reviewed the structure of the UK beer market, but did not explain the Commission's reasons in detail.

Complaints were submitted by a number of IEL lessees. Judging by the time taken to consider them, the Commission does not seem to have found it an easy issue to resolve. It had still not reached a final view by March 1997, when IEL notified a new form of a standard lease ("the new lease"), and at the same time withdrew the notification and request for exemption of the old lease.

On 24th November 1997 the Commission formally rejected the complaints relating to the old lease. Its reasoning is important in the context of the present case. It noted the withdrawal of IEL's notification and continued:-

"35. There is thus no more request for exemption pending for the 'old' Lease. This means that the only remaining question with regard to the application of Community competition law to the 'old' Lease, is whether or not Article 85(1) is applicable.

36. This is a question which the national court is in a position to decide. It can be added that the national court can take into account some factual and legal elements which the Commission has made public on earlier occasions. With regard to a general market description, reference can be made to the earlier mentioned 19(3) notice and to similar such notices in the Bass and Whitbread cases. As to the legal point of the applicability of Article 85(1), indirect guidance can be taken from the Commission's intention indicated in the earlier mentioned Inntrepreneur 19(3) notice to grant an exemption to the Lease.

37. Furthermore, in the event that the national judge finds that Article 85(1) is applicable, he is in a position to determine the civil law effects following from the prohibition set out in Article 85(2). The national judge, and he alone, can decide such issues as the severability or not of a particular clause found to be falling foul of Article 85(1) from the rest of the agreement. Furthermore, he can distinguish, as to the civil law effects resulting from the applicability of Article 85(1), between those Tenants who have entered into the Purchasing Agreement and Deed of Variation and those who have not. The judge can also award compensation for loss suffered as a result of an infringement of Article 85. Furthermore, the national court could deal at the same time with claims under national law, such as 'misrepresentation' claims which, according to information in possession of the Commission, have already been made by several Inntrepreneur tenants before the national courts.

Conclusion

38. The Commission considers that there are insufficient grounds for granting the complainant's application as, in the absence of a request for exemption pursuant to Article 85(3), it would lead to a duplication of procedures and is therefore not in the Community interest for the Commission to rule upon the complainant's request that the 'old' Lease has infringed Article 85(1) since the date of its introduction." (emphasis added in para 37)

On 10th December the Commission issued an Article 19(3) notice indicating its intention to grant exemption for the new lease. The notice contained a detailed review of the terms of the lease, and concluded that the disadvantages of the tie were more than compensated by countervailing benefits. Again, there were complaints from IEL lessees, but these were rejected by a letter dated 26th January 1998. The letter stated:

"...Any price differential is more than compensated by countervailing benefits, such as the terms of rent payable, training and procurement benefits in addition the possibility to assign the new lease can lead to substantial premiums being paid by the new to the old lessee... The tied lessees are therefore, on average, in a position to compete on a level playing field with their free trading competitors."

As appears from the above extracts, there were concurrent proceedings involving Bass and Whitbread leases. It is unnecessary to refer these in detail other than to note that, as in the IEL case, the central issue addressed by the Commission was whether tied tenants were afforded countervailing benefits sufficient to compensate them for the obligation to pay for their beer products at a higher price by virtue of the tie.

 

In July 1991 Mr Crehan became a licensee of two Courage public houses, the Cock Inn and the Phoenix in Staines, Middlesex. Each was occupied on the terms of a draft lease in IEL's standard form attached to an agreement for a lease dated 11th July 1991. (Relevant provisions of the standard lease are set out in Appendix 2).

He surrendered possession of the Cock Inn in March 1993 and of the Phoenix in September 1993. In June 1993 Courage commenced proceedings in the High Court for some £15,000 plus interest, in respect of goods delivered to the Phoenix pub between December 1992 and May 1993. By a defence and counterclaim dated 10th August Mr Crehan denied liability for the sums claimed and sought to set-off against Courage's claim his counterclaim for damages for breach of Article 85. There were some initial skirmishes between 1993, but between October 1994 and November 1997 the proceedings were put on hold pending the determination by the EC Commission of the application for clearance.

Following the withdrawal of the application for clearance, in October 1997, there was further procedural activity, leading in March 1998 to agreement to propose preliminary issues for decision by the court. Although in May 1998 Lightman J ordered that the parties prepare an agreed statement of facts, that did not prove possible. The agreed preliminary issues are set out in Appendix 3 to this judgment. They have to some extent been overtaken by events, as will appear below.

 

The other case concerns a lease of the Market Tavern public house in North Ormesby, Cleveland. Mr Haigh and Mr Raper, who trade as "Target Developments", are the occupiers. Target are lessees of 15 public house owned by IEL, some of which go back to February 1990. Before entering into an agreement for the lease of the Market Tavern they occupied under a six month licence commencing on 6th January 1992. The lease was in the standard form. It was dated 1st February 1995, but was for a term of 20 years commencing on 26th June 1992. It reserved a rent of £31,000 per annum, with concessionary rents in the first two years. No rent has been paid since October 1996.

On 26th November 1996 Target commenced proceedings against IEL for damages for breach of Article 85 of the Treaty. On 5th March 1997 IEL started proceedings claiming forfeiture of the lease on the grounds of arrears of rent, which then totalled over £15,000. They sought judgment under RSC Order 14 for possession and arrears of rent, together with interest and mesne profits. On 30th May 1997 a defence and counterclaim was served by Target, claiming relief against forfeiture and a set-off in respect of sums claimed by them in their own 1996 action.

On 13th March 1998 Master Moncaster was asked to make orders in a large number of IEL cases, where tenants were in occupation of premises owing substantial arrears of rent. By that time there had been decisions adverse to the tenants in a series of similar cases at first instance. In Star Rider Ltd -v- IEL [1998] 16 EG 140 (8th December 1997), Blackburne J held that, even if there were a claim for damages under Article 85, it would have insufficient connection with the claim for rent arrears to be allowed by way of set-off. In Trent Taverns v Sykes (18 February 1998 - unreported), David Steel J said that "enough was enough", and that the issues should now be regarded as settled in the High Court pending any review by the Court of Appeal.

When the matter came before Master Moncaster, he noted agreement on the need for a test case in the Court of Appeal to settle the issues; Crehan had been chosen as a test case, which, following agreement of preliminary issues, it was intended to take to the High Court and Court of Appeal as soon as possible. He was asked to consider the terms on which the other cases should be stayed pending resolution of the test case. He ordered that further proceedings in the other cases -

"be stayed until determination of the intended test case in the Court of Appeal or further order..."

This was made conditional upon the tenants paying into Court by 13th May sums in respect of arrears of rent, as directed in a "lodgement schedule" annexed to the order, and paying current rent and other payments under the leases from 1st April 1998. The provision for arrears was made on the basis that 20% of the arrears claimed up to 31st March 1998 would be paid, save in cases where the tenant applied for a reduction or waiver on the grounds of financial hardship. On 20th March, the Master ordered that the Target case be listed at the same time as the agreed issues of law in the Crehan case.

 

Both cases came before me on 10th June, when I heard full argument. At the beginning of the hearing I had been informed that another similar case, Gibbs Mew plc -v- Gemmell, was about to be heard in the Court of Appeal. Accordingly, with the agreement of all the parties, I reserved judgment to await the decision in that case.

Judgment in Gibbs Mew was given on 22nd July. Arrangements were then made for the cases before me to be re-listed at the beginning of the new term to consider the implications of the Court of Appeal judgments. I heard further argument on 19th and 20th October.

By that time, the pleadings in both cases had been further amended (at my invitation) to ensure as far as possible that all issues of principle which the parties wished to raise were fully before the Court, and presented in their most refined form. IEL had issued a new notice of motion in both proceedings, designed to provide me with the flexibility to dispose of the cases under Ord 18 r 19 (strike-out), Ord 14 (summary judgment), or Ord 14A (disposal on a point of law), as I might consider appropriate. Arrangements had also been made for an Order 14 summons in another Target case (relating to the Pavilion public house in Eaglesfield, Cleveland) to be listed before me. This was solely for the purpose of enabling me to consider issues arising out of Master Moncaster's stay of this and other proceedings. I indicated that I would defer consideration of those issues until after judgment on the main issues.

 

The Crehan defence relies on the alleged illegality of the tie both as a defence to the claim by Courage, and by way of counterclaim for damages against Courage and IEL.

"The list price" is defined as -

"the Courage list price which sets out the prices at which Mr Crehan is obliged to pay for beer supplied by Courage Ltd"

"The market price" is -

"the price of beer which Mr Crehan would have paid for beer sold by him in the absence of the beer tie... which at all material items was substantially lower than the list price". (para 1)

The "beer tie" is the obligation under Clause 2(1) of the 1st Schedule to purchase beer requirements from the nominee at the list price (para 6).

The first part of the Counterclaim (para 5ff) is headed "lease contrary to Article 85(1)". It is alleged that the leases were in breach of Article 85 in that (inter alia) the beer tie prevented Mr Crehan from buying beers from the cheapest and most efficient sources and foreclosed the potential outlets available to suppliers of beers competing with Courage (para 7); and that accordingly the beer tie was "unlawful, void and unenforceable", and "a breach of statutory duty owed by IEL and/or Courage Group to Mr Crehan." (paras 9-10).

The next group of allegations is headed "Agreement or concerted practice contrary to Article 85(1)" (para 11ff), and relies on the agreements between the Courage and Grand Met groups in 1990. As one of the matters supporting the allegation, there is specific reference to the Beer Procurement Agreement. Other matters include allegations that Courage, as the nominated supplier, supplied beer to IEL tied lessees at Courage's list price, and that a sum approximately equal to the difference between the market price and the list price was split between IEL, Grand Met and the Fosters Group (para 11(3) and (4)).

Paragraph 12 asserts:

"As a direct result of the said agreement or concerted practice the agreements to lease between Mr Crehan and Courage Group and subsequently IEL contained the standard terms and conditions as set out in the IEL lease and also contained the said unlawful beer tie in favour of Courage Limited."

The agreement or concerted practice so defined is alleged to infringe Article 85 (para 13); the particulars define the breach by reference to the effects of the "beer tie" (in similar terms to those in para 7).

Paragraph 13a, introduced by a recent amendment, contains an alternative formulation of the concerted practice claim. It alleges that -

"... the agreement and/or concerted practice had as their object or effect unlawful price discrimination contrary to Article 85(1)(d)".

The alleged price discrimination is then particularised:

"(1) The agreement and/or concerted practice had as their object that Courage would charge substantially higher wholesale prices to tied IEL lessees than to their free trade competitors, including IEL free houses and managed houses, who could obtain Courage beer at the market price. Further or alternatively the agreement and/or concerted practice had this effect. In 1991 and 1992 the market price for Courage best bitter was £35 less than the list price, for Fosters lager was £40 less than the list price on a barrellage of 200; and approximately £45 less than the list price for Courage best bitter and £50 less than the list price for Fosters lager on a barrellage of 500.

(2) This discrimination in wholesale prices put the tied IEL lessees at a competitive disadvantage with their free trade competitors because the lower wholesale prices were reflected either temporarily or permanently in lower retail prices charged by the free trade competitors...".

Further particulars are given, including references to the large numbers of failed IEL tied lessees, and, more specifically, to the problems caused to Mr Crehan by the ability of his nearest competitors, the Angel and the Clarence, to buy Courage beer at the lower market price. It is alleged that this price discrimination was operated across the whole of the UK and thereby distorted the structure of competition in a substantial part of the Common Market (para 13b); and that IEL lessees were offered no or insufficient countervailing benefits to compensate for the price differential (para 13c).

It is then alleged that the infringement of Article 85 constituted "a breach of statutory duty owed to Mr Crehan jointly and severally..." by Courage, Grand Met and IEL (para 14). He claims damages based on the comparison between the prices at which he obtained beer and the price at which he would have been able to obtain it outside the tie, and further damages based on the contention that his inability to buy at the market price forced him out of business.

The Target claim relates to rent rather than goods supplied. The Defence and Counterclaim raise substantially the same issues as the Crehan pleading, albeit in slightly different language, including a claim to set off damages against rent (para 19). It contains a further contention, not reflected in the Crehan pleading, based on "implied terms". Paragraph 12 reads:

"The lease also contained implied terms as set out below. The said terms fall to be implied out of the express terms and/or as a matter of law and/or to give business efficacy to the contract set out in the lease and its schedules.

12.1 It was an implied term that the list prices required to be paid by the defendants for specified beers would be reasonable.

12.2 Further or alternatively and without limitation of 12.1 it was an implied term that the said list prices would not be maintained at an unreasonable margin above the corresponding open market prices for the same or similar products so as to render the defendant's business uncompetitive relative to free houses in its locality.

12.3 Further or alternatively and without limitation of 12.1 and 12.2 it was an implied term that the disparity between the said list prices and corresponding open market prices for the same or similar products would never be permitted to exceed the value of any advantages allowed to the defendants under the lease by way of discounted rent as against the market rent payable from time to time for equivalent premises free of tie."

Mr Swainston, who argued this part of the case on behalf of Target, accepted that paras 12.2 and 12.3 could be treated as particular instances of the general allegation in 12.1.

The counterclaim gives particulars of the alleged effects on the trade of the Market Tavern between June 1992 and November 1996: again competitors were able to buy Courage beer at lower prices (p 27ff); and there were no or insufficient countervailing benefits to compensate for the price differential.

 

As developed in argument, the concerted practice issue was based principally on the effect of the Beer Procurement Agreement. The parties to it include a number of different members of the groups but for present purposes it will be sufficient to treat it as an agreement between IEL as the intended landlord of the properties and Courage as the intended nominee.

By Clause 3(1) Courage undertook to pay to IEL an "annual amount" calculated in accordance with a formula set out in Schedule 5. By clause 3(2):

"The parties acknowledge, (for the avoidance of doubt) that the annual amount is a special financial and commercial advantage provided by (Courage) to (IEL) to enable (IEL) to grant and operate Inntrepreneur leases and thereby seek to improve the distribution of brands and sales of beer through the tied Inntrepreneur outlets."

By Clause 3(5) the parties agreed that the annual amount would be reviewed and adjusted quarterly, upwards or downwards, by such amount as was agreed to be necessary -

"....in order to ensure that IEL receives an appropriate rate of return seeking to maximise the distribution of brands and sales of beer through the tied houses, consistent with the costs incurred by IEL in granting and operating Inntrepreneur leases".

Clause 4(1) provided as follows:

"Courage agrees with (IEL) that throughout the currency of the Agreement and in relation to Beer delivered to each Tied House by (Courage):

(a) the price of such beer shall:

(i) be as stated in the relevant Price List for the time being in force and applicable to the Tied House to which such Beer is delivered;

(ii) be, in any event, generally competitive judged over a period of at least one year at any time ... with the prices charged for the same or similar Beer to the tenants situated in broadly comparable regions to those of the tenants of Tied Houses by three other brewers who are each a member of a large brewery group ...".

Clause 5(2) provided:

"(Courage) shall make available to tied houses a wide range of high quality beer in line with consumer demand for time to time and shall do so on a long term basis and in a competitive manner."

By clause 7 the agreement was to last until 31st March 1998, subject to provision for earlier termination under Clause 14. Schedule 2 contained a definition of the "company's price list" as -

"the price list for the time being of the company or (where applicable) its nominees for the drinks which they offer to supply to purchasers at the lessees' level of distribution."

Mr Vaughan's skeleton argument on behalf of Crehan and Target asserts:

"Discrimination arose because Courage and Inntrepreneur agreed that Courage would not grant the Inntrepreneur tied tenants the discounts which were granted to other public houses (eg Inntrepreneur free houses) ...".

The pleaded case, however, does not allege that the agreement itself constrained Courage to discriminate between tied tenants and other customers in respect of discounts, and there is nothing in the agreement to support that allegation.

The defence itself asserts that the "unlawful beer tie" resulted directly from the concerted practice(para 12), and that it was that which prevented or discouraged lessees from buying beers from the cheapest and most efficient source, as they would under normal conditions of competition (para 13(1)). Thus it relies specifically on the effect of the "unlawful beer tie". That reflects the reality that the Beer Procurement Agreement by itself has no effect on Crehan, and that the Crehan lease and the beer tie it are essential to complete the link. So expressed, however, the allegation comes into direct conflict with the illegality principle applied by the Court of Appeal in Gibbs Mew. The beer tie on which Crehan relies is an essential part of the allegation of illegality, and therefore cannot found a claim in the English court.

Paragraph 13a avoids an express reference to the beer tie, and alleges that the concerted practice had the object, or the effect, that Courage would charge substantially higher prices to tied lessees than to free trade competitors. In my view this formulation does not assist the case. Again it depends on the causal link between the agreement and the beer tie, and therefore comes up against the same illegality problem.

It is in fact a feature of a number of similar cases previously decided against tenants that the landlord was alleged to be operating in concert with others. For example, in Trent Taverns -v- Sykes , the beers were supplied, not by the landlord, but by other brewers including Whitbread plc and Scottish and Newcastle plc. The allegation under Article 85 was that -

"the offending provisions and/or the lease form part of a network which the plaintiff and/or connected undertakings including but not limited to Scottish and Newcastle plc and Whitbread plc had concluded with a large number of separate undertakings...".

In Gibbs Mew itself the tenant relied on the former landlord's supply agreements, with breweries such as Scottish and Newcastle and Bass, in support of his argument that there was a significant effect on the market (transcript p 20).

I conclude accordingly that, applying the reasoning of the Court of Appeal in Gibbs Mew, the concerted practice alleged in the statement of claim does not in law provide a basis for a claim in damages for either Crehan or Target.

For all these reasons I conclude that the tenants have no arguable basis for a claim for damages arising out of the imposition of the beer tie or the Beer Procurement Agreement, whether by virtue of Article 85 or under an implied term. I will hear argument as to the consequences of these findings for the cases before me and the incidental issues which arise. I will also consider the application relating to the stay in the Pavilion case.

Provisions of Community Law

"1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

- any agreement or category of agreements between undertakings;

- any decision or category of decisions by associations of undertakings;

- any concerted practice or category of concerted practices;

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question."

 

Commission Regulation 1984/83

This provides exemptions in accordance with Article 85 (3), including provisions relating to beer supply agreements. Article 6 contains the "block-exemption" for agreements satisfying specified requirements including "special commercial or financial advantages" ("SCOFA"), subject to qualifications and restrictions in Articles 7 and 8.

Article 6

"Pursuant to Article 85(3) of the Treaty, and subject to Articles 7 to 9 of this Regulation, it is hereby declared that Article 85(1) of the Treaty shall not apply to agreements to which only two undertakings are party and whereby one party, the reseller, agrees with the other, the supplier, in consideration for the according of special commercial or financial advantages, to purchase only from the supplier, an undertaking connected with the supplier, or another undertaking entrusted by the supplier with the distribution of his goods, certain beers, or certain beers and certain other drinks, specified in the agreement for resale in premises used for the sale and consumption of drinks and designated in the agreement."

Article 14

"The Commission may withdraw the benefit of this Regulation... when it finds in a particular case that an agreement which is exempted by this Regulation nevertheless has certain effects which are incompatible with the conditions in Article 85 (3) of the Treaty, and in particular where ...

(c) the supplier without any objectively justified reason:

1. Refuses to supply categories of resellers who cannot obtain the contract goods elsewhere on suitable terms or applies to them differing prices or conditions of sales;

2. Applies less favourable prices or conditions of sale to resellers bound by an exclusive purchasing obligation as compared with other resellers at the same level of distribution."

 

Council Regulation 17

This provides provisions for the enforcement of Articles 85 and 86 by the Commission. Article 15 enables the Commission to fine undertakings or associations of undertakings if they "either intentionally or negligently" infringe Article 85 (1). By Article 15.5, fines may not be imposed for acts taking place between notification to the Commission under Article 85(3) and its decision.

Clause 3: the lease is for a 20-year period. The rent is payable quarterly in advance, and subject to review (upwards only) in accordance with the 3rd Schedule.

Clause 4(1): the lessee covenants to pay the rent -

"... without deduction by variable direct debit or such other means as the company may from time to time specify...".

Clause 4(34): the lessee covenants to comply at all times with the terms of the first and second schedules.

Clause 5(3): the lessor covenants -

"to observe and perform (or procure the observance and performance of) the obligations on the part of the company contained in the first schedule to this lease".

Clause 6(9): there is provision for "an additional review of the rent", in accordance with the provisions of the 3rd schedule, if for any reason the company is unable to enforce any of the purchasing obligations or is required by law to vary its pricing structure relating to lessees subject to exclusive purchasing obligations. On the review the provisions which have been varied or become unenforceable shall be disregarded for the purposes of that or any subsequent review.

"Specified beers" are defined. "Nominees" are defined as the persons or companies specified from time to time to the lessee. "Company's Price List" is defined as -

"the price list for the time being of the Company or (where applicable) its Nominees for the drinks which they offer to supply to purchasers at the Lessee's level of distribution."

By paragraph 2 the Lessee is required to purchase from the lessor or its nominees all its requirements of specified beers; and by paragraph 3, subject to certain exceptions, it is prohibited from bringing onto the premises specified beers from other sources. Paragraph 9 imposes a minimum barrellage requirement.

By paragraph 12, the lessor is required to -

"... use its best endeavours to supply the Lessee or procure the supply to the Lessee by its Nominees at the prices shown in the Company's Price List of such quantities of Specified Beers as he may require and be ready and able to pay for..."

By paragraph 13, the lessor may -

"... at any time by notice indicate that supplies of beers under this Schedule shall in future (or for the period specified in the notice) be supplied by Nominees appointed by the Company and not by the company... and references to the Company's Price List shall be references to the current price list of such nominees."

An appendix to the First Schedule sets out the types of beer "specified in the lease".

The second Schedule includes covenants not to change the name of the house, and to comply with all reasonable requirements of the company regarding the presentation of the company's name or its nominees, and as to the method of sale and storage of the company's goods.

Paragraph 8(1) requires the lessee to pay for goods and services supplied by the company or its Nominees at the current price list, and to comply with the terms and conditions upon which they are supplied; and to pay by direct debit, or such other method as the lessor or nominee may specify.

Assuming that

(1) The beer tie referred to in the Re-Amended Defence and Counterclaim forecloses the retail outlets available to the suppliers of beer competing with Courage : and

(2) The beer tie prevented Mr Crehan from buying beer for sale at the tied premises from what would otherwise have been cheaper sources available to those of Mr Crehan 's competitors who were free of any beer tie: and

(3) The facts assumed in (1) produced the legal consequence that the beer tie infringed Article 85.

Questions

(1) Does the assumed infringement of Article 85 give rise to a claim for damages by Mr Crehan for breach of statutory duty (as pleaded by Mr Crehan) to compensate him for damage of which he complains in his Counterclaim, and if so,

(a) against which of the Defendants to the Counterclaim?

(b) does the fact that the beer tie is prohibited by Article 85(1) deprive Mr Crehan of his right of action or otherwise reduce his damages?

(2) Does the assumed infringement of Article 85 give rise to a restitutionary claim by Mr Crehan to recover the difference (if any) between the price he paid for beer under the tie and the price he would have paid had he not been subject to the tie, and if so,

(a) against which of the Defendants to the Counterclaim?

 

(b) does the fact that the beer tie is prohibited by Article 85 (1) as assumed above deprive Mr Crehan of his claim or otherwise reduce the amount recoverable?

(c) does the fact that Mr Crehan received the beer the subject of his restitutionary claim and re-sold it at a price in excess of that which he paid Courage deprive Mr Crehan of his claim or otherwise reduce the amount recoverable?

Assuming that:

(1) The beer tie referred to in the Re-Amended Defence and Counterclaim foreclosed the retail outlets to suppliers of beer competing with Courage: and

(2) The beer tie prevented Mr Crehan from buying the beers for sale at the tied premises from what would otherwise have been cheaper sources available to those of Mr Crehan's competitors who were free of any beer tie.

Questions

(1) Do the facts and matters assumed in (2) produce the legal consequence that the beer tie infringed Article 85. If so,

(2) Does such an infringement of Article 85 give rise to a claim for damages by Mr Crehan for breach of statutory duty (as pleaded by Mr Crehan ) to compensate him for the damage of he which pleads in his counterclaim, and if so,

(a) against which of the Defendants to the Counterclaim?

(b) does the fact that the beer tie is prohibited by Article 85(1) deprive Mr Crehan of his right of action or otherwise reduce his damages?

(3) Does such an infringement of Article 85 give rise to a restitutionary claim by Mr Crehan to recover the difference (if any) as between the price he paid for beer and the tie and the price he would have paid had he not been subject to the tie, and if so,

(a) against which of the Defendants to the Counterclaim?

(b) does the fact that the beer tie is prohibited by Article 85(1) deprive Mr Crehan of his claim or other wise reduce the amount recoverable?

(c) does the fact that Mr Crehan received the beer the subject of his restitutionary claim and re-sold it at a price in excess of that which he paid Courage deprive Mr Crehan of his claim or otherwise reduce the amount recoverable?