The Berlin Regional Court has been hearing antitrust cases in relation to the charges levied on card payments for very many years. Armies of lawyers from all the big German firms have been involved. Eleven groups of claimants had sought a total of €150 million. The Court has now awarded damages to 4 of the claimants - but only to the tune of just over €1m euros - and has dismissed the other claims in their entirety. This result is against the background of a well evidenced cartel and the Court making findings of breach of antitrust law.

There were particular reasons why the claims were always going to be smaller than initially sought, and in broad terms this was because of the impact of the German limitation act. All claims before 2009 were judged to be statute-barred and since the claims went back to 1991 there was inevitably going to be a substantial reduction in damages. Nonetheless, the outcome is disappointing for claimants across the board. Some corporate claimants were not able satisfactorily to be able to demonstrate that they had incurred loss at all.

The case is a salutary lesson for litigation funders because a breach of competition law does not necessarily sound in damages - certainly not to the level that may be necessary to justify funding the claims in the first place. It goes to the fundamental issue of being able to adequately show how loss has been established at the very outset of the consideration of an action. One should not become lulled into a false sense of security just because the proof of a breach of competition law has been proven.

Not a dissimilar outcome has occurred in the first CAT claim to award damages in the trucks cartel. After very heavy litigation, two awards have been made to BT and the Royal Mail. BT was awarded £3.5m and Royal Mail approx £35m - £20m of which was interest. It can quickly be seen that a litigation funder would not have been able to fund the claim of BT on its own. Equally importantly, the timing of the incurred losses becomes a very relevant consideration because of the significance of an award of interest.

The trucks cartel litigation is an example of “follow on” litigation when there is an assumption that half the battle is already won - but these recent awards, and the experience in the German giro card cartel case, demonstrate that the quantum exercise is all the more fundamental when it comes to the follow on cases. It should come as no surprise, therefore, that a litigation funder is going to need to spend considerable time understanding and challenging the quantum reports that are prepared in support of the actions.