Define: Pass-On Defence

Pass-On Defence
Pass-On Defence
Quick Summary of Pass-On Defence

Pass-on defence is a legal strategy employed by defendants in lawsuits to assert that they did not incur any losses because they transferred any excess or insufficient charges to another party in the distribution process. For instance, if a manufacturer is accused of overcharging a retailer, the manufacturer may argue that the retailer passed on the overcharge to the consumer, thus absolving themselves of any damages. This defence is frequently used in antitrust cases where a member of the distribution chain is accused of engaging in price-fixing or other anti-competitive practices. The defendant may contend that any overcharge was passed on to the subsequent member of the chain, thereby negating any losses suffered. In essence, the pass-on defence allows defendants to shift responsibility to another party in the distribution chain and evade liability for any damages.

What is the dictionary definition of Pass-On Defence?
Dictionary Definition of Pass-On Defence

Pass-on defence is used by defendants in antitrust cases to assert that they did not suffer any harm from an antitrust violation as they transferred any excess or insufficient charges to another party in the distribution chain.

Full Definition Of Pass-On Defence

The “pass-on defence” is a concept in competition law that concerns mitigating damages claims. When a claimant seeks damages for an overcharge resulting from an anti-competitive practice, the defendant may argue that the claimant has “passed on” the overcharge to their customers, thus reducing or eliminating their own loss. While conceptually straightforward, this defence involves complex legal principles and has significant implications for competition law and private enforcement.

Legal Context

The pass-on defence arises within the framework of competition law, particularly in relation to actions for damages due to breaches of competition rules, such as price-fixing cartels or abuses of dominant market positions. The Competition Act of 1998, along with the Enterprise Act of 2002 and the European Union’s influence through rules and directives, particularly before Brexit, serve as the main legal frameworks governing these actions in the UK.

Historical Development

Historically, the concept of passing on overcharges was contentious. The notable case of Hanover Shoe, Inc. v. United Shoe Machinery Corp. in the United States set a precedent by rejecting the pass-on defence, arguing it complicates damage calculations and undermines the deterrent effect of antitrust laws. The European Court of Justice (ECJ) and subsequent legislation, however, had a significant influence on how the European approach evolved.

The European Union’s Influence

The EU’s stance on the pass-on defence is articulated in Directive 2014/104/EU on antitrust damages actions. The Directive acknowledges the pass-on defence and seeks to balance ensuring compensation for damages brought about by anti-competitive behaviour and preventing unjust enrichment. This Directive has been transposed into UK law, ensuring its principles continue to influence despite Brexit.

The Pass-On Defence in UK Law

The UK’s approach to the pass-on defence carefully considers both claimants’ rights and economic realities. The key legislative instruments include:

  1. The Competition Act 1998: This Act provides the foundation for competition law in the UK, prohibiting anti-competitive agreements and abuse of dominant positions. It enables private parties to seek damages for breaches of competition law.
  2. The Consumer Rights Act 2015 includes provisions on collective actions and damages, facilitating claims by consumers and businesses affected by anti-competitive practices. It incorporates elements of the EU Directive, thus recognising the pass-on defence.
  3. The Competition Appeal Tribunal (CAT): The CAT plays a pivotal role in adjudicating competition law claims, including those involving the pass-on defence. It has developed jurisprudence on how the defence should be applied in practice.

Principles of the Pass-On Defence

The pass-on defence is based on two fundamental principles:

  1. Causation and Mitigation: The defence revolves around the idea that damages should compensate for actual loss. If the claimant has mitigated their loss by passing on the overcharge to customers, the claimed damages should be adjusted accordingly. This principle ensures that claimants do not receive windfall gains.
  2. Proof and Evidentiary Requirements: The defendant bears the burden of proof for the pass-on defence. They must demonstrate that the overcharge was passed on to the claimant’s customers. This involves complex economic and factual analysis, requiring robust evidence and expert testimony.

Key Cases and Jurisprudence

Several key cases have shaped the application of the pass-on defence in the UK:

  1. Sainsbury’s Supermarkets Ltd v. Mastercard Inc.: In this landmark case, Sainsbury’s claimed damages for overcharges due to Mastercard’s anti-competitive conduct. The CAT recognised the pass-on defence, highlighting the need for detailed economic evidence to establish the extent of passing on.
  2. Deutsche Bahn AG v. MasterCard Inc.: This case further elaborated on the evidentiary requirements for the pass-on defence. The court emphasised that defendants must provide precise and robust economic analysis to substantiate their claims of pass-on.

Economic Considerations

The application of the pass-on defence involves complex economic analysis. Key considerations include:

  1. Market Structure: The market structure in which the claimant operates is crucial. Due to price sensitivity, the likelihood of passing on overcharges is higher in highly competitive markets. Conversely, the ability to pass on overcharges in less competitive markets may be limited.
  2. The elasticity of demand: The elasticity of demand for the claimant’s products influences the extent to which overcharges can be passed. If demand is inelastic, the claimant is more likely to absorb the overcharge, whereas with elastic demand, passing on is more feasible.
  3. Supply Chain Dynamics: The claimant’s position within the supply chain also affects the pass-on defence. Manufacturers may pass on overcharges to wholesalers, who may pass them on to retailers, complicating the analysis of actual losses.

Practical Challenges

Applying the pass-on defence in practice presents several challenges:

  1. Complexity of Proof: Demonstrating pass-on requires detailed and often technical economic evidence. This complexity can increase litigation costs and prolong proceedings.
  2. Data Availability: Access to relevant data is critical for substantiating the pass-on defence. Defendants may face difficulties obtaining necessary data from claimants or third parties.
  3. Consistency in Approach: Given the fact-specific nature of economic analyses, ensuring a consistent approach to the pass-on defence across different cases is challenging.

Policy Implications

The pass-on defence has significant policy implications for competition law enforcement.

  1. Deterrence vs. Compensation: The balance between deterring anti-competitive behaviour and ensuring adequate compensation is delicate. Over-reliance on the pass-on defence could undermine the deterrent effect of competition law, while ignoring it could lead to over-compensation.
  2. Access to Justice: The complexity and cost of proving or disproving pass-on can impact access to justice. Smaller claimants may be deterred from pursuing damages due to the burden of proof and associated costs.
  3. Collective Actions: The rise of collective actions, facilitated by the Consumer Rights Act 2015, affects the application of the pass-on defence. In collective actions, pass-on assessment becomes more intricate, requiring the aggregation of individual claims and their respective economic analyses.

Future Directions

Several factors could affect the pass-on defence’s future in the UK:

  1. Judicial Interpretation: Continued judicial interpretation and refinement of the pass-on defence will shape its application. Future cases will further define evidentiary standards and economic methodologies.
  2. Brexit: The UK’s departure from the EU introduces uncertainty. While existing principles are likely to remain influential, potential divergence in competition law approaches could emerge.
  3. Technological Advancements: Advances in data analytics and economic modelling could enhance the ability to prove or disprove pass-on. Improved methodologies may reduce the complexity and costs associated with the defence.


The pass-on defence is a critical aspect of competition law in the UK, balancing the need for compensation with the economic realities of market behaviour. Its application involves intricate legal and economic analyses, presenting challenges for claimants and defendants. As judicial interpretation evolves and technological advancements enhance economic modelling, the pass-on defence will play a pivotal role in shaping competition law enforcement and private damages actions. Understanding its nuances and implications is essential for legal practitioners, policymakers, and businesses navigating the complex landscape of competition law.

Pass-On Defence FAQ'S

A pass-on defence is a legal argument used by a defendant to claim that they should not be held liable for damages because the plaintiff passed on the cost of the alleged harm to someone else.

A pass-on defence can be used in cases where the defendant is being sued for damages related to antitrust violations, price-fixing, or other economic harm. The defendant argues that any overcharge or harm was passed on to others in the supply chain, such as consumers or downstream purchasers.

No, a pass-on defence is not always successful. The courts will consider various factors, including the specific circumstances of the case and the evidence presented, to determine the validity of the defence.

Yes, a plaintiff can challenge a pass-on defence by presenting evidence to show that the alleged harm was not passed on to others and that the defendant should still be held liable for the damages.

To support a pass-on defence, the defendant may need to provide evidence of the alleged harm being passed on, such as pricing data, sales records, and expert testimony.

No, a pass-on defence is typically used in civil cases involving economic harm or antitrust violations, and may not be applicable in criminal cases.

Yes, there have been cases where defendants have successfully used a pass-on defence to avoid liability for damages, but each case is unique and the outcome will depend on the specific facts and evidence presented.

Yes, a pass-on defence can be used in international legal disputes, but the laws and regulations governing the defence may vary by jurisdiction.

One potential drawback of using a pass-on defence is the burden of proof on the defendant to demonstrate that the harm was passed on, which may require extensive evidence and expert testimony.

Yes, it is advisable to consult with a lawyer who has experience in antitrust and economic harm cases before using a pass-on defence, as they can provide guidance on the best legal strategy for your specific situation.

Related Phrases
No related content found.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th June 2024.

Cite Term

To help you cite our definitions in your bibliography, here is the proper citation layout for the three major formatting styles, with all of the relevant information filled in.

  • Page URL:
  • Modern Language Association (MLA):Pass-On Defence. DLS Solicitors. June 20 2024
  • Chicago Manual of Style (CMS):Pass-On Defence. DLS Solicitors. (accessed: June 20 2024).
  • American Psychological Association (APA):Pass-On Defence. Retrieved June 20 2024, from website:
Avatar of DLS Solicitors
DLS Solicitors : Family Law Solicitors

Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

All author posts