On 11 March 2019, the Competition Appeal Tribunal (the “CAT”) announced that it had received two applications to bring collective proceedings on behalf of all affected commuters, alleging that three U.K. train operators had engaged in exploitative abuses of dominant positions.^[1] This is the first time that claimants have filed applications to commence collective proceedings on a standalone basis (i.e., without the benefit of a prior infringement decision that binds the Courts) since the introduction of the collective action procedure on 1 October 2015.

No collective proceedings have been certified to date. However, this unpromising start does not appear to have dampened claimants’ appetite to seek to bring class actions similar to those in the U.S. On the contrary, the Train Tickets proceedings suggest that collective actions will continue to assume increasing prominence in private antitrust enforcement in the U.K.

The Statutory Regime for Collective Proceedings

Prior to October 2015, only “specified bodies” could bring representative actions on behalf of consumers, only on an opt-in basis,^[2] and only in follow-on actions.^[3] As a result of these limitations, the tool was rarely used. The only organisation ever specified in this way was The Consumers’ Association (commonly known as “Which?”) and only one such action was ever brought: Case No. 1078/7/9/07 The Consumers’ Association v JJB Sports PLC. In that case, only 130 claimants (less than 0.1% of those affected) came forward to claim £20 each, leading Which? to comment that “there will always be concerns about proportionality if an opt-in system prevails — both from a cost and time perspective. The only real, practical way to get over this is to introduce an opt-out system”.

The Consumer Rights Act 2015 introduced reforms intended to reinvigorate collective antitrust damages. The Act eliminated some of the restrictions associated with the earlier regime, introducing a collective proceedings regime that allowed for the aggregation of individual claims that would otherwise not be economically viable to pursue. Today, collective proceedings may be brought by a natural or legal person (who does not itself need to be member of the class) acting as representative of a class, comprising either consumers and/or businesses, on an opt-out or an opt-in basis. The CAT has also acquired the power to hear standalone as well as follow-on actions.

Certification by the CAT is a prerequisite for an action to proceed as collective proceedings. In determining whether to grant a collective proceedings order (the “CPO”), the CAT must be satisfied that (i) the claims are “eligible” for inclusion in collective proceedings, and (ii) it is “just and reasonable” for a person to be authorised by the CAT as class representative. In respect of the first criterion, the CAT has to be satisfied that the claims raise common issues (defined as “same, similar or related issues of fact or law”) and that the underlying claims are “suitable” for collective proceedings.

The factors the CAT must take into account in assessing whether claims are “suitable” include:^[4]

• Whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues;
• The costs and benefits of continuing the collective proceedings;
• The size and the nature of the class; and
• Whether the claims are suitable for an aggregate award of

Overview of Claims Since 2015

Six applications have been issued to date. All but one were brought on an opt-out basis and, as noted above, all but two are based on prior infringement decisions. The cases span a range of alleged anti-competitive conduct, including resale price maintenance, horizontal price-fixing, and abuse of dominance through excessive pricing. An overview of the cases is set out below.

CPO APPLICATIONS FILED SINCE OCTOBER 2015

Mobility Scooters

In Mobility Scooters, the General Secretary of the National Pensioners Convention sought to bring, as the proposed class representative, a claim on behalf of all U.K. individuals who purchased any mobility scooter models produced by Pride during a two-year period.

The CAT provided important guidance on its general approach to certification. It confirmed that, unlike in the U.S (where certification proceedings typically involve extensive discovery, depositions, cross-examination of witnesses, and hearings), a CPO application is intended to have either no or only “very limited” disclosure and “shorter hearings”. It also noted that there is no requirement that common issues “predominate” over individual issues, a critical question in many US certification proceedings.^[9]

Following a three-day hearing, the CAT adjourned the application and invited the applicant to amend the claim, which was brought on a follow-on basis, to limit the scope of the claim to losses directly resulting from the infringements established by the Office of Fair Trading (the “OFT”) (the applicant’s original claim focused on the impact of Pride’s online pricing restriction communicated to all distributors). The OFT found that only eight (out of 250-300) of Pride’s distributors took part in the illegal resale price maintenance arrangement in respect of seven (out of 38) models.^[10] Shortly after, the applicant abandoned the claim, possibly because after the aggregate damages amount had been revised down, the claim was no longer economically viable.

Interchange Fees

In Interchange Fees, the proposed class encompassed all U.K. “[i]ndividuals who between 22 May 1992 and 21 June 2008 purchased goods and/ or services from businesses selling in the UK that accepted MasterCard cards” over the age of 16 (estimated to be over 46 million individuals). The action was framed as following on from the European Commission’s 2007 decision finding an infringement by Mastercard for effectively setting a minimum price merchants had to pay to their acquiring banks for accepting Mastercard payment cards through fixing the EEA multilateral interchange fees.^[11]

The CAT first rejected the applicant’s argument that the distribution of aggregate damages is a matter that only arises at the end of the proceedings. The CAT also dismissed the CPO application on the basis that the applicant’s sole proposed method for the distribution of any damages failed to respect the governing principle of damages for breach of competition law, i.e., the restoration of the claimants to the position they would have been in but for the breach. Specifically, the applicant proposed that the aggregate damages be divided on a per capita basis among all the members of the class for each year of the claim period, without reference to their individual spend or the mix of products/services they purchased.

The CAT’s decision is currently subject to appeal before the Court of Appeal, following its reversal of the CAT’s determination that there is no right of appeal against its CPO decisions.

Trucks

Both Trucks (1) and (2) arise out of the European Commission’s 2016 decision finding a price-fixing and information-sharing cartel among European truck manufacturers between 1997 and 2011.^[12] In Trucks (1), the proposed class representative is a special purpose vehicle (“SPV”) specifically established for the purpose of the proceedings and the proposed class comprises all persons who acquired new trucks registered in the U.K. during the infringement period. The proposed class in Trucks (2), a trade association for the road haulage industry, also encompasses persons who leased trucks and trucks that are pre-owned.

Whereas Trucks (1) is brought on an opt-out basis (i.e., all persons fitting the class description form part of the class unless they specifically opt out), Trucks (2) is brought on an opt-in basis (i.e., only those fitting the class description that specifically choose to join the claim form part of the class). This is the first time that the CAT will have to decide whether to allow more than one CPO applications arising from the same underlying infringement to proceed. In principle, given that the proposed classes will unlikely overlap with each other in their entirety (including because Trucks (2) is an opt-in case), the CAT might well allow both cases to proceed (subject to satisfaction of all the other conditions).

Train Tickets

Train Tickets (1) and (2) are the first stand-alone CPO applications. They have a common proposed class representative and seek to combine claims by a total of almost three million rail commuters against three train operators. The claims allege that the train operators abused their positions of dominance by failing to ensure that commuters into London are aware of fare options that would avoid them being charged twice in respect of part of their journey. It is alleged that the commuters “have been effectively compelled by circumstances in the control of the [train operators]” to have overpaid due to the train operator’s failure to provide “customer-facing information” about the fare options that would have prevented the commuters from being double-charged for part of the same journey.

Analysis

Based on this relatively small universe of cases, the following observations may be made.

• First, whilst both Mobility Scooters and Interchange Fees—the only two CPO applications that have come before the CAT—failed (subject to the appeal in Interchange Fees’ case) at the first hurdle, neither case involved a “classic” price-fixing cartel among businesses operating at the same level of the supply chain, the basis of the vast majority of follow-on damages Trucks (1) and (2), which involve such price-fixing arrangements, are generally expected to have stronger prospects of certification.
• Second, in any event, the Train Tickets proceedings, which are based on a relatively unused theory of harm (excessive pricing), suggest that these early setbacks have not deterred claimants.
• Third, notwithstanding that the Mobility Scooters and Interchange Fees cases failed at the certification stage, the CAT’s decisions in those cases have provided useful guidance for prospective claimants that is likely to spur future proceedings. In particular, the decisions seem likely to promote the continued involve- ment of third-party litigation funders, who have provided funding in each of the six collective actions. The CAT, rejecting Mastercard’s submission to the contrary, confirmed that litigation funders could in principle be paid out of any unclaimed damages in consideration for their funding of the collective actions. The same applies to the success fee element under a conditional fee arrangement and after-the- event insurance ^[13]
• Fourth, the CAT has readily accepted that the impetus for collective proceedings could come from claimant law firms, noting that the central question is instead whether the proposed class representative (which could potentially be an SPV) would ensure that the proceedings are conducted in the interest of the ^[14]

Fifth, the U.K. is one of the few jurisdictions in Europe that have an opt-out regime and continues to enjoy various procedural advantages (e.g., discovery, cost rule) over alternative jurisdictions. The UK’s attractiveness as a forum for bringing antitrust damages claims is therefore unlikely to diminish significantly in the event of Brexit.

[1]              Case 1304/7/7/18, Justin Gutmann v First MTR South Western Trains Limited and Another (“Train Tickets (1)”) and Case 1305/7/7/19, Justin Gutmann v London & South Eastern Railway Limited (“Train Tickets (2)”).

[2]              In opt-in proceedings, a representative brings a claim only on behalf of members of a specified class who have chosen to participate. In opt-out proceedings, a representative brings a claim on behalf of all members of a specified class except for those who have chosen not to participate.

[3]              A follow-on action is a claim for damages where the infringement has already been established by the relevant competition authority, whose findings bind the courts.

[4]              Competition Appeal Tribunal Rules 2015, Rule 79(2).

[5]              Case 1257/7/7/16, Dorothy Gibson v Pride Mobility Products Limited (“Mobility Scooters”).

[6]              Case 1266/7/7/16, Walter Hugh Merricks CBE v Mastercard Incorporated and Others (“Interchange Fees”).

[7]              Case 1282/7/7/18, UK Trucks Claim Limited v Fiat Chrysler Automobiles N.V. and Others (“Trucks (1)”).

[8]              Case 1289/7/7/18, Road Haulage Association Limited v Man SE and Others (“Trucks (2)”).

[9]              Mobility Scooters, paragraphs 103-104.

[10]             CE/9578-12, Mobility scooters supplied by Pride Mobility Products Limited: prohibition on online advertising of prices below Pride’s RRP, OFT decision of 27 March 2014.

[11]             Case COMP/34.579 MasterCard, Case COMP/36.518 EuroCommerce, Case COMP/38.580 Commercial Cards, Commission decision of 19 December 2007. MasterCard’s appeals against the Commission’s decision to both the General Court and the Court of Justice were unsuccessful.

[12]             Case AT.39824 – Trucks.

[13]             Interchange Fees, paragraphs 114-115, 125.

[14]             Mobility Scooters, paragraph 138.