The Private Competition Enforcement Review: United Kingdom

Overview of recent private antitrust litigation activity

The start of 2021 marked the end of the Brexit transition period and the beginning of a period in which European Union law no longer applies in the UK (see Section II). Although this is likely to have a significant impact in the future, the decisions of the European Commission (the Commission) continued to drive much of the private antitrust litigation in the English courts and the UK Competition Appeal Tribunal (CAT), a specialist competition court in 2021. This included developments in the following long-running competition law claims that are progressing in the CAT.

  1. In the credit and debit-card interchange fee litigation brought against Visa and Mastercard stemming from a decision of the Court of Justice of the European Union (CJEU) against Mastercard in 2014,2 a large number of claimants are continuing to progress their claims in the CAT, with further claims having been issued during 2021.
  2. In the Trucks litigation, which follows a July 2016 Commission decision finding that various truck manufacturers colluded in relation to the pricing of medium and heavy trucks,3 there are two sets of collective proceedings awaiting certification following a hearing of the claimants' applications for a collective proceedings order in April 2021 (and several groups of claimants are pursuing claims against the relevant truck manufacturers for damages).4
  3. In the FX class action litigation, arising out of two May 2019 Commission decisions concerning cartels in the spot foreign exchange market,5 the CAT heard applications for collective proceedings orders in July 2021 made by two prospective class representatives who are competing to have their actions certified.6

The end of 2020 also brought the Supreme Court's decision in the opt-out class action commenced by Walter Merricks against Mastercard in reliance on the 2014 CJEU decision referred to above.7 As discussed further in Sections VII and XV, that decision made the regime for competition law class actions significantly more claimant friendly. Subsequently, a number of class actions were certified in 20218 and new applications for certification made, particularly against large tech companies, including Apple, Facebook/Meta, Google and Qualcomm. These trends are expected to continue, as discussed further in Section XV.

General introduction to the legislative framework for private antitrust enforcement

As is well settled, those that are harmed by an infringement of competition law are entitled to seek damages. Two types of anticompetitive conduct are actionable as breaches of statutory duty: (1) an agreement between undertakings, a decision of an association of undertakings or a concerted practice that has as its object or effect the prevention, restriction or distortion of competition within the UK (the Chapter I Prohibition, Section 2, Competition Act 1998 (CA98)); or (2) an abuse of a dominant position in a market (the Chapter II Prohibition, Section 18, CA98). In both cases, there is a requirement that the prohibited conduct may affect trade within the UK.

Although the UK left the EU on 31 January 2020 and EU law ceased to have effect at the end of the transition period on 31 December 2020, the Chapter I and Chapter II prohibitions continue to mirror the EU provisions set out in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).9 UK competition law also remains heavily influenced by the UK's former membership of the EU:

  1. EU-derived domestic legislation and EU regulations, and decisions (including those of the Commission) in force immediately before 1 January 2021, continue to have effect and form part of UK domestic law (retained EU law);10
  2. retained EU law is to be interpreted in accordance with any case law or general principles of EU law laid down (and the UK courts must 'have regard to any relevant' Commission Decisions issued) before 1 January 2021, although the UK courts (or the UK Competition and Markets Authority (CMA)) may depart from these in certain circumstances, which are broadly defined;11
  3. the Commission retains competence over cases initiated before 1 January 2021 concerning infringements up to that date (continued competence cases);12 and
  4. claims may still be brought for breaches of EU competition law that occurred before 1 January 2021, including in reliance on Commission decisions rendered before that date and decisions in continued competence cases.13

Going forward, however, the UK Supreme Court will not be bound by the past or future decisions of the CJEU and, as such, the approach to the interpretation of domestic competition law may change over time.14

Following the implementation of Directive 2014/104/EU (the Damages Directive) in the UK in 2017, the limitation periods for competition law claims are set out at Paragraphs 17 to 26 of Schedule 8A of the CA98.15 These rules apply to any infringement that took place after 9 March 2017, and differ from the standard position under the Limitation Act 1980, which provides (in outline) that a claim in England and Wales must be brought within six years of the cause of action accruing, except in certain circumstances (e.g., where the facts necessary to make the claim were deliberately concealed from the claimant).16

In contrast, for competition law claims relating to any infringement that took place after 9 March 2017, the six-year limitation period begins on the later of: (1) the day on which the infringement of competition law that is the subject of the claim ceases; and (2) the day on which the claimant knows or could reasonably be expected to know of the relevant behaviour, that it infringed competition law, that the claimant suffered harm and the identity of the infringer.17 In addition, the limitation period will be suspended or interrupted during: (1) the period of an administrative investigation by a competition authority, such as the CMA, and any subsequent appeals from the authority's decision (time starts to run again one year after the end of the investigation or appeal proceedings);18 (2) the period in which the parties engage in consensual dispute resolution;19 or (3) the period in which collective proceedings are ongoing.20

Extraterritoriality

The territorial reach of UK competition law is expressly limited in scope to agreements, decisions, concerted practices and abuses of dominance that may have an effect on trade within the UK.21

The legal framework for jurisdiction as between the UK and EU Member States has changed significantly following the end of the Brexit transition period on 31 December 2020. This is because the EU regime ceased to apply to the UK from that point (except in relation to pending cases).22 The UK has applied to rejoin the Lugano Convention, which would replicate many (but not all) of the key aspects of the EU regime. However, it is currently unclear whether the UK's application will be granted.23

Therefore, for claims commenced from 1 January 2021 onwards, the general position (albeit with certain exceptions)24 is that, unless a defendant can be served in the UK, it will be necessary for a claimant to apply to the English court for permission to serve proceedings out of the jurisdiction (whether in the EU or elsewhere).25 This allows the court an opportunity to vet claims at an early stage to determine whether they have a 'reasonable prospect of success'. The court will also need to be satisfied that the claim falls within one of the relevant 'jurisdictional gateways'.26 These include claims where damage has been sustained within England and Wales or acts causing damage have been committed within England and Wales,27 and where a:

claim is made against a person ('the defendant') on whom the claim form has been or will be served and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.28

This latter 'gateway' is often helpful to claimants where a claim can be brought against a UK-based party (as an 'anchor' defendant), with the entity against which the claim primarily lies then being added to the claim as a 'necessary and proper party' (such as another member of a cartel).

Finally, the court will need to be satisfied that England and Wales is the proper forum for the resolution of the dispute.29 This is of particular significance now that the Recast Brussels Regulation,30 which did not contain a similar requirement, no longer governs jurisdiction as between the English courts and those of Member States of the EU. As such, in each case the court may need to conduct a fact-specific assessment of whether another jurisdiction may be more appropriate to hear the proceedings. However, even if the court concludes that another jurisdiction is more appropriate, it may decide not to stay the English proceedings if it can be shown that it would be unjust to do so.

In addition, pursuant to the Hague Convention on Choice of Court Agreements, the English courts will generally give effect to an exclusive jurisdiction clause in favour of the courts of an EU Member State.31 However, whether such a clause extends to a competition claim will depend on its wording. The CJEU has held in separate decisions that a standard form exclusive jurisdiction clause, which makes no express mention of competition law claims, does not cover claims under Article 101 TFEU (which was the same approach adopted by the English Court of Appeal in Ryanair v. Esso), but does cover claims under Article 102 TFEU.32

Insofar as claims against nation states are concerned, while foreign states enjoy a general immunity from suit (except in relation to commercial activities), state-owned entities will only enjoy immunity if they are exercising sovereign authority.33 In a competition law context, therefore, it seems likely that a state or state-owned entity engaged in commercial activity that affects the UK market will not be immune from suit, except where that activity is for an exclusively social purpose.34

Standing

Competition damages claims in England and Wales can be brought by any private individual, company or public authority that has suffered loss as a result of alleged anticompetitive behaviour.35 This includes those that purchased directly from the infringing entity (i.e., a direct purchaser), customers of the direct purchaser that may have paid higher prices for goods or services as a result of an overcharge caused by the anticompetitive behaviour being passed on to them (i.e., indirect purchasers),36 competitors of the infringing entity, and purchasers of competing products that may have paid higher prices because of the distortion of competition. In certain circumstances, a party to an agreement that infringes competition law may claim damages from another party to the same agreement.37

In addition to conferring rights on individuals to bring private damages actions, the CA98 gives rights to authorised representatives to bring collective actions on behalf of class members that have either suffered directly from competition law breaches or members that suffered indirectly.38 These collective proceedings can proceed on a stand-alone or follow-on basis (see Section X) and are permitted as either opt-in (where each class member is required to notify the representative that their claim should be included in the action) or opt-out (where the claim is brought on behalf of all members of the class, except for those that actively choose not to participate).39 See further Section VII.

The process of discovery

Parties to English proceedings, including claims concerning allegations of competition law infringements, are generally required to disclose to their opponent all relevant documents that are (or have been) in their control. This obligation not only requires a party to disclose documents that are favourable to its own case, but also those documents that adversely affect its case or support its opponent's case. Parties are expected to cooperate with one another and to assist the court so that the scope of disclosure can be agreed or determined in the most efficient way possible. Typically, disclosure will fall to be considered at the first case management conference, and the court has a broad discretion to make a wide range of orders.40 Certain divisions of the High Court (in particular, the Business and Property Courts) are currently operating under a disclosure 'pilot scheme' intended to promote a more cost-efficient and cooperative approach to disclosure. That scheme, which has been in operation since 1 January 2019 and is currently (following an extension) scheduled to run until the end of 2022, does not apply to competition law cases,41 although compliance with the spirit of the scheme is likely to be encouraged.

It is also possible to obtain disclosure from a third party, provided that the court is satisfied that the documents being sought are likely to support the applicant's case or adversely affect its opponent's case, and that the disclosure is necessary for the fair disposition of the claim or to save costs.42 Specific rules governing the disclosure of documents from a competition authority were introduced in 2017, restricting a party's ability to apply for the disclosure of an authority's investigation materials before an investigation has closed; and providing that disclosure of documents or information on a competition authority's file will only be ordered by the court where it is satisfied that no other person is reasonably able to provide the material.43

Documents may be withheld from inspection on a number of grounds, the most common of which is that documents are subject to legal professional privilege or formed part of 'without prejudice' discussions between the parties.44 Although documents cannot be withheld from inspection on grounds of commercial sensitivity or confidentiality alone, certain protections can be put in place to restrict access to the material. For instance, it is typical in competition law claims for commercially sensitive documents to be disclosed into a 'confidentiality ring', allowing access only to those individuals who have provided a written undertaking to the court agreeing to keep the material confidential. Further safeguards can be established to protect confidential documents that need to be referred to in oral submissions by, for example, asking the court to go into private session.

Following disclosure, parties to English proceedings usually exchange factual and expert witness evidence in the form of witness statements of fact and expert reports. Both the High Court and the CAT have wide powers to make directions concerning the nature and extent of the evidence required to determine the issues in the case, including the ability to summon a witness to appear before the court or produce documents in his or her possession.45

Use of experts

The use of experts, particularly economists, is common and often pivotal in competition cases. While it is usual for each party to appoint its own expert, testifying experts owe an overriding duty to assist the court on matters within their expertise.46

Expert economists are often called upon to give evidence in relation to crucial aspects of competition cases, including the definition of the relevant market and the appropriate 'counterfactual' against which the alleged infringement is to be measured. In addition, economists or forensic accountants commonly give evidence in relation to the quantification of damages and the issue of pass-on (discussed in Section IX).

In class action litigation, the question of whether to certify the class also commonly requires expert evidence. For example, in a number of recent collective proceedings decisions made by the CAT (as to which, see Section VII), expert evidence was relied on in relation to the identification of the class, the calculation of damages and the appropriate approach to the distribution of any award of damages to class members.47

Class actions

There are various mechanisms for collective redress in England and Wales, including: (1) group litigation orders (GLOs), where claims that give rise to 'common or related issues of fact or law' are brought together on an opt-in basis (under Section III of CPR 19); (2) representative actions, where a named claimant pursues an action both on its own behalf and on behalf of a class of individuals who have the 'same interest' in the claim and who have not opted out (under Section II of CPR 19); and (3) collective actions for damages arising out of infringements of competition law, which can be brought on either an opt-in or opt-out basis.

Until recent years, collective proceedings for competition law infringements could only be brought by the Consumers' Association (a body that had been specified as a consumer body for the purposes of Section 47B of the CA98) and only on the basis that the proceedings followed an infringement decision of a competition authority. By way of an amendment to Section 47B, collective proceedings can now be brought in the CAT by a person who is certified to act as a representative on behalf of class members, irrespective of whether that representative is a member of the class.48 The legislative intent behind the amendment was to provide access to justice for individuals whose rights have been infringed but for whom ordinary forms of civil redress are unsuitable.49 Importantly, collective proceedings allow claimants to obtain damages without the need to prove that class members have individually suffered loss; rather, it is enough to establish that loss has been suffered by the class viewed as a whole.50 This is known as an 'aggregate award of damages'51 and has been described by Lord Briggs as 'radically alter[ing] the established common law compensatory principle'.52

Before collective actions can proceed, the CAT must first make a collective proceedings order (CPO) under Section 47B(4) of the CA98 and be satisfied that: (1) it is just and reasonable for the individual applying for the CPO to act as the class representative; (2) the application is brought on behalf of an identifiable class of persons; (3) the proposed claims raise common issues (that is, they raise the same, similar or related issues of fact and law); and (4) the claims are suitable to be brought in collective proceedings.53 The first CPO was granted by the CAT on 18 August 2021,54 and a number of further CPOs have since been made.55 The certification of those class actions followed the 2020 landmark decision of the UK Supreme Court in Merricks v. Mastercard,56 which provided greater clarity as to the approach that should be taken to the certification of claims and, as noted above, made the regime for competition law class actions significantly more claimant friendly. See Section XV in relation to possible future developments as a consequence of this decision.

Calculating damages

The general rule for damages under English law is that they are compensatory, so that a claimant is 'entitled to be placed, so far as money can achieve that, in the position which [it] would have been in but for the tortious acts which have caused [it] loss'.57 Ordinarily in competition damages claims, damages will be assessed by reference to the delta between what has actually taken place (i.e., the factual) with what would hypothetically have taken place absent the infringement (i.e., the counterfactual). This is often a complex assessment involving expert evidence, and the task is not always one where precision is possible, but can be 'accomplished to a large extent by the exercise of a sound imagination and the practice of the broad axe'58 (see also Section IX).

The UK's implementation of the Damages Directive on 9 March 2017 prohibited exemplary (or punitive) damages in competition proceedings,59 although exemplary damages remain a possibility in certain circumstances in respect of events during the preceding period.

Interest may be awarded on a compensatory basis and at the discretion of the court. This will usually be calculated using simple interest from the date of the cause of action to the date of judgment, and typically the court's starting point will be to award interest at base rate plus 1 per cent.60 Compound interest is, in principle, also available in certain circumstances, and was recently awarded to Sainsbury's in its claim against Mastercard for breach of statutory duty.61

Generally, the losing party is liable to pay the successful party's reasonable fees (including lawyers' fees) and expenses, although these are often reduced on assessment by the court to some degree.

Pass-on defences

In the UK, pass-on is not strictly a defence (although it is often raised as such by defendants in competition law claims). Rather, it is an element in the quantification of damages, which is necessary to comply with the principle that damages should be compensatory in nature, and also to avoid double recovery through claims in respect of the same overcharge by a direct purchaser and by subsequent (indirect) purchasers in a chain, to whom an overcharge has been passed-on (in whole or in part).62

In Sainsbury's v. Mastercard, the Supreme Court held that the defendant has the burden of establishing that the claimant has mitigated its loss by way of pass-on; however, once the defendant has raised this issue, there is a heavy evidential burden on the claimant to provide evidence as to how it has dealt with the recovery of its costs in its business (most of which will be exclusively in the claimant's possession) to prevent the court from making adverse inferences in applying the compensatory damages principle. The Supreme Court explained that the law is pragmatic and does not require unreasonable precision in the proof of the amount of the loss that has been passed-on by the claimant (a 'broad axe' can be used and no greater degree of precision in the quantification of pass-on is required from the defendant than would be required from the claimant in establishing its losses).63

The Damages Directive provided additional clarification in respect of competition claims relating to loss suffered as a result of an infringement taking place after its implementation in the UK on 9 March 2017 (which was not of relevance in Sainsbury's v. Mastercard). Where a defendant claims in its defence that the claimant has passed on an overcharge resulting from an infringement of competition law, the defendant has the burden of proving that fact (and the extent of the pass-on). Where a claimant is an indirect purchaser and relies on pass-on as part of its claim, pass-on will be assumed if an overcharge is established in respect of the direct purchaser, unless the defendant proves that the overcharge, or part of it, was not passed on.64

Follow-on litigation

In addition to bringing claims on a 'stand-alone' basis (where the claimant is required to prove the infringement of competition law to establish liability), claims may be brought on a 'follow-on' basis. Claimants bringing these claims may rely on a prior infringement finding of a regulator (such as the CMA or the Commission) as evidence that anticompetitive behaviour has occurred, meaning that the claimant need only prove that the infringement caused it to suffer loss (and the quantum of that loss). Proceedings can combine both stand-alone and follow-on elements, and these claims can be brought in either the High Court or the CAT.65

However, where a cartel participant has been granted immunity from financial penalties under a cartel leniency programme, in general only direct or indirect purchasers from, or suppliers to, that entity will have a claim against it.66 Further, where an investigation of a competition authority (civil or criminal) is ongoing, the courts have discretion to stay any private enforcement actions pending the outcome of the investigation. The English courts typically require parties to progress their claims to the conclusion of the pleadings stage, and sometimes to provide disclosure and file witness and expert evidence, before granting a stay.67

Privileges

Documents that would otherwise be required to be disclosed in proceedings before the High Court or the CAT can be withheld on the basis of English law legal professional privilege, which comprises the following two sub-heads: legal advice privilege; and litigation privilege. Although the relevant (common law) rules have developed over many years, there remains a degree of uncertainty in certain circumstances (see below). Nevertheless, the availability of legal professional privilege is of particular importance to litigants, given that documents may not be withheld from disclosure purely on the basis that they contain confidential or commercially sensitive information (see Section V). Privilege can, however, be lost (typically where a party waives privilege, whether intentionally or inadvertently).

Legal advice privilege protects confidential communications between a client and its lawyer that are made for the dominant purpose of obtaining or giving legal advice.68 This advice is not confined to telling the client the law, but extends to 'advice as to what should prudently and sensibly be done in the relevant legal context'.69 Legal advice privilege can also extend to documents that are not actually communicated between client and lawyer; for example, where these documents record legal advice sought or given. Communications between a client (or a lawyer on the client's behalf) and third parties will not generally be covered by legal advice privilege, even where the purpose of the communication is to obtain information from the third party for the client to instruct its lawyers (although, as noted below, the position is different under litigation privilege). This limitation is particularly acute where the client is a corporation because, in those circumstances, the English courts have adopted a highly restrictive approach to identifying the 'client', limited to those individuals authorised to seek and receive legal advice on behalf of the corporation (such that the definition will often exclude employees who may have information considered necessary for the instruction of lawyers).70 This approach is controversial and subject to criticism, although it has not (yet) been overruled.

Litigation privilege covers communications between clients or their lawyers and third parties, for the purpose of obtaining information or advice in connection with existing or contemplated litigation, but only when the following conditions are satisfied: litigation must be in progress or reasonably in contemplation; the communications must have been made for the sole or dominant purpose of conducting that litigation; and the litigation must be adversarial, not investigative or inquisitorial.71 Whether litigation, or other adversarial proceedings, are reasonably in the contemplation of the party asserting litigation privilege has been examined in a number of significant decisions.72 Applying this to competition investigations in Tesco Stores Ltd v. Office of Fair Trading,73 the CAT confirmed that (among other things) it would be wrong to characterise all competition investigations as merely inquisitorial and that, while these processes might start as non-adversarial, the question is whether they had become adversarial at the time of the relevant communication.

In certain circumstances, communications that are subject to legal professional privilege may be shared with a third party without a general loss of privilege in the communications. These circumstances include where the parties in question share a common (or substantially similar) interest in the subject matter (common interest privilege), or where the parties retain the same lawyer to represent them under a joint retainer (joint privilege). In addition, even where there is no common or joint interest, it is possible for a client to share its privileged materials with a third party (including regulatory authorities) without a general loss of privilege in certain circumstances (in particular, provided the materials remain confidential).74

Finally, communications between parties to a dispute may be prevented from being admitted in evidence on the basis of without prejudice privilege where those communications were made in a genuine attempt to settle the dispute (subject to certain exceptions).75 From relatively recent authority, it appears that without prejudice privilege may extend to settlement negotiations between a firm and its statutory regulator (although the nature and scope of the privilege in these circumstances may not be exactly the same as in court proceedings).76

Settlement procedures

Where a settlement has been reached with a regulatory authority such as the CMA, this does not prevent private enforcement by those that have suffered loss as a result of the alleged breach of competition law (except where immunity has been granted, as to which see Section X). The settlement and any admission contained in a settlement submission that has not been withdrawn and any cartel leniency statement will not be disclosable or admissible in evidence.77 However, following publication of the CMA's settlement decision, claimants may rely on that settlement decision as proof of the relevant breach of competition law (see Section X) and it has also been held (in relation to a Commission decision) that it would be an abuse of process to deny facts admitted in recitals to a settlement decision.78

As to the settlement of private claims, where a settlement agreement is reached with one of several infringers, the value of the overall claim will be reduced by the settling infringer's share of the loss.79 In addition, non-settling infringers will be unable to seek contribution from the settling infringer (see Section XIV).80

In opt-out class actions, settlement agreements between the class representative and the defendant are subject to the CAT being satisfied that the terms of the settlement are 'just and reasonable'.81 In assessing this, the CAT may take into account all relevant circumstances, including the amount and terms of the settlement, the size of the class covered by the settlement, the likelihood of a higher amount being awarded following a trial, the opinion of an independent expert and the likely costs and duration of a trial.82 There is no similar requirement where proceedings are brought on an opt-in basis.

Arbitration

Claims concerning both the Chapter I and Chapter II prohibitions are generally accepted to be suitable for determination in an arbitration, although the CJEU in Eco Swiss made it clear that competition law is a fundamental provision that forms part of the rules of public policy, such that national courts may be required to set aside arbitral awards if they are incompatible.83 This principle has not been directly considered by the English courts in the context of a competition claim, but has been applied where other mandatory provisions of EU law are concerned.84

It is less clear whether a standard form arbitration clause, which makes no express mention of competition law claims, will cover a claim founded on a breach of competition law. This is a question of construction of the arbitration clause in any particular case and the point has not been decided; however, a court may take the same approach as the CJEU in relation to jurisdiction clauses (see Section III).

The English High Court has, however, held that an arbitration clause did cover an Article 101 claim when the same facts would also have given rise to contractual claims against the defendant for breach of its obligations to: (1) negotiate prices in good faith; and (2) alert the claimant to events that might affect the defendant's ability to meet its obligations under the agreement.85

Indemnification and contribution

The general position under English law is that liability for a loss caused by an infringement of competition law may be joint and several between those responsible. Claims for a contribution or indemnity can be made against third parties regardless of whether or not they are parties to existing proceedings.86 In any action for a contribution in the English courts, the defendant has two years within which to bring a claim from the date of the judgment in which quantum was determined (or, in the case of a settlement, the earliest date on which the amount to be paid is agreed).87 The amount of the contribution is a matter for the discretion of the court, and should be 'just and equitable having regard to the extent of that person's responsibility for the damage in question'.88

The Damages Directive specified certain limitations in relation to contributions in respect of competition claims relating to loss suffered as a result of an infringement taking place after its implementation in the UK on 9 March 2017. In particular, the amount of any contribution by an undertaking that has been granted immunity from financial penalties under a cartel leniency programme is limited; and a settling defendant is not liable to make a contribution to a non-settling co-defendant in respect of loss or damage that is the subject of the claim.89 The amount of the contribution is to be 'determined in the light of their relative responsibility for the whole of the loss or damage caused by the infringement' and must take into account any damages paid by way of settlement.90

Future developments and outlook

Looking forward, we believe that the number of class actions is likely to grow, and the law will continue to evolve, as the CAT grapples with novel issues raised by a class actions regime that is still very much in its infancy. In particular, the developments described in Section VII are likely to encourage claimant law firms and litigation funders to file collective proceedings, facilitating claims that may otherwise not have been possible on an individual basis. However, the regime needs to operate fairly, and a lower threshold risks unmeritorious claims being brought opportunistically (as the two dissenting Supreme Court judges in Merricks warned, the approach taken by the majority may 'very significantly diminish the role and utility of the certification safeguard').91 While the collective proceedings regime is beginning to take off in a meaningful way, the law is still in a state of flux. In addition to implementing the guidance given by the Supreme Court in Merricks, the CAT will need to grapple with more novel points, such as 'carriage disputes' (i.e., where competing CPO applications are brought by different class representatives against the same defendant or defendants and in relation to the same (or very similar) subject matter, the CAT will need to determine which class representative should proceed).

In addition, we are likely not only to see new follow-on claims stemming from CMA decisions (as the CMA begins to exercise its widened powers), but there is also the prospect of more stand-alone claims where the Commission and other foreign regulators have made decisions that appear to have a bearing on the UK market. Indeed, this is already evident in the claim against Qualcomm, which has its origins in regulatory action in the US.92 There are also possible indications that the CAT is willing to consider novel theories of harm, which may increase the scope for claimants to frame their claims as breaches of competition law.93

It is also notable that the director of litigation at the CMA confirmed at a conference on 30 September 2021 that the CMA is increasingly likely to intervene in private antitrust claims as an interested third party, using the powers it has under the CAT Rules to submit oral and written observations.94 The precise nature and extent of these interventions, however, remains to be seen.

Looking further forward, the UK has consulted on the introduction of new rules to promote competition in digital markets.95 While the proposals largely focus on public enforcement through the creation of a dedicated Digital Markets Unit within the CMA,96 it is possible that private actions for damages will follow in due course (whether on a follow-on or stand-alone basis).97

Finally, it will be increasingly important to monitor the degree to which the UK departs from developments in CJEU case law in connection with competition claims (although the UK's trajectory in this regard is currently unclear).98

Footnotes

1 Julian Stait and William Charles are partners, Cormac Alexander and Emma Hogwood are special counsel, and Mark Padley is a senior associate, at Milbank LLP. The authors are also grateful for the input received from Andrea Hamilton, partner at Milbank LLP.

2 MasterCard Inc v. European Commission (Case C-382/12 P) [2014] 5 CMLR 23, which upheld the Commission's 2007 Decision, C (2007) 6474.

3 Case AT.39824 Trucks, C (2016) 4673.

4 UK Trucks Claim Limited v. Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others, Case No. 1282/7/7/18; Road Haulage Association Limited v. Man SE and Others, Case No. 1289/7/7/18.

5 Case AT.40135 FOREX (Three Way Banana Split) and Case AT.40135 FOREX (Essex Express).

6 Michael O'Higgins FX Class Representative Limited v. Barclays Bank PLC and Others, Case No. 1329/7/7/19; Mr Phillip Evans v. Barclays Bank PLC and Others, Case No. 1336/7/7/19.

7 Walter Merricks CBE v. Mastercard Incorporated & Ors [2020] UKSC 51.

8 See, for example, Justin Le Patourel v. BT Group PLC [2021] CAT 30; Justin Gutmann v. First MTR South Western Trains Limited and Stagecoach South Western Trains Limited; and Justin Gutmann v. London & South Eastern Railway Limited [2021] CAT 31.

9 The Competition (Amendment etc.) (EU Exit) Regulations 2019, Regulation 62.

10 EU (Withdrawal) Act 2018, Sections 2 and 3.

11 id., Section 6 and CA98, Section 60A.

12 UK–EU Withdrawal Agreement 2019/C 384 I/01, Article 92.

13 The Competition (Amendment etc.) (EU Exit) Regulations 2019, Schedule 4, Part 6, Paragraphs 14(2) and 15 (as amended by the Competition (Amendment etc.) (EU Exit) Regulations 2020, Regulation 36, amendments to Part 3, Paragraph 7(3)(b) of the 2019 Regulations).

14 EU (Withdrawal) Act 2018, Section 6(4).

15 Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017.

16 Limitation Act 1980, Sections 2, 5 and 32.

17 CA98, Schedule 8A, Paragraph 19.

18 id., Paragraph 21.

19 id., Paragraph 22.

20 id., Paragraph 23.

21 CA98, Sections 2 and 18.

22 Regulation (EC) No. 44/2001 (the Brussels Regulation) (for proceedings commenced before 10 January 2015) and Regulation (EU) No. 1215/2012 (the Recast Brussels Regulation) (for proceedings commenced after 10 January 2015) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

23 On 4 May 2021, the Commission issued a (non-binding) recommendation that the EU should reject the application.

24 Civil Procedure Rules (CPR), Rule 6.33.

25 id., Rule 6.36.

26 CPR Practice Direction 6B, Paragraph 3.1.

27 id., Paragraph 3.1(9).

28 id., Paragraph 3.1(3).

29 CPR, Rule 6.37(3).

30 Regulation (EU) No. 1215/2012.

31 Both the UK (in its own right) and the EU are contracting parties to the Hague Convention. However, there is some disagreement concerning the date of the UK's accession, as well as certain important exceptions to the scope of the Convention.

32 For Article 101, see Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV and Others (Evonik Degussa GmbH and others intervening) [2015] QB 906, and the English Court of Appeal case of Ryanair Limited v. Esso Italiana Srl [2013] EWCA Civ 1450; for Article 102, see Case C-595/17 Apple Sales International v. MJA [2019] 1 WLR 2705.

33 State Immunity Act 1978, Sections 3 and 14, and Case C-41/90 Höfner and Elser [1991] ECR I-1979.

34 Case C-205/03 P FENIN v. Commission [2006].

35 CA98, Section 47A; Damages Directive, Articles 1 and 3.

36 Damages Directive, Recital 13 and Article 12(1).

37 The courts will have due regard to the economic and legal context of the agreement and the respective bargaining power and conduct of the parties, including whether one party was in a distinctly weaker position than the other: Case C-453/99 Courage v. Crehan [2001], Paragraphs 31–33.

38 CA98, Section 47B.

39 CA98, Section 47B(10) and (11).

40 See CPR, Rule 31.5 in relation to High Court proceedings and CAT Rules 60(3) in relation to proceedings before the CAT.

41 CPR Practice Direction 51U, Paragraph 1.4(1).

42 See CPR, Rule 31.17 (3); CAT Rule 63(3).

43 CPR Practice Direction 31C; CAT Practice Direction (Disclosure); CA98, Schedule 8A, Paragraphs 29–30. See also Damages Directive, Articles 5(3) and 6(4).

44 See Section XI.

45 CPR, Rule 34; CAT Rules 55 and 56.

46 CPR, Rule 35.3.

47 See, for example, the CAT's judgment in Justin Gutmann v. First MTR South Western Trains Limited & Ors [2021] CAT 31, particularly Paragraphs 123–125 and 140–164.

48 CA98, Sections 47B(2) and (8)(a).

49 Lord Briggs in Merricks v. Mastercard [2020] UKSC 51, Paragraph 45.

50 CA98, Section 47C(2).

51 CAT Rule 73(2).

52 Merricks v. Mastercard [2020] UKSC 51, Paragraph 76.

53 CA98, Section 4(8) and CAT Rule 79(1).

54 Walter Hugh Merricks CBE v. Mastercard Incorporated and Others [2021] CAT 28.

55 See, for example, Justin Le Patourel v. BT Group PLC [2021] CAT 30; Justin Gutmann v. First MTR South Western Trains Limited and Stagecoach South Western Trains Limited; and Justin Gutmann v. London & South Eastern Railway Limited [2021] CAT 31.

56 [2020] UKSC 51.

57 Sainsbury's Supermarkets Ltd & Ors v. MasterCard Incorporated & Ors [2020] UKSC 24, Paragraph 182.

58 Watson, Laidlaw, & Co Ltd v. Pott, Cassels & Williamson [1914] SC (HL) 18, at 29–30.

59 Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017, Section 2, Schedule 1, Part 8; CA98, Schedule 8A, Paragraph 36.

60 Senior Courts Act 1981, Section 35A; The Commercial Court Guide, 10th Edition (Routledge, 2017), Paragraph J14.1; BritNed Development Ltd v. ABB [2018] EWHC 2913 (Ch), Paragraph 17(2).

61 Sainsbury's Supermarkets Ltd v. Mastercard Incorporated & Ors [2016] CAT 11, Paragraph 546.

62 Sainsbury's Supermarkets Ltd & Ors v. MasterCard Incorporated & Ors [2020] UKSC 24, Paragraphs 196–197.

63 id., Paragraphs 216–217 and 225–226.

64 CA98, Schedule 8A, Paragraph 9.

65 CA98, Section 47A; see also the Practice Direction on Competition Law, Paragraph 2.1 and the CAT Guide to Proceedings 2015, Paragraph 5.4.

66 CA98, Schedule 8A, Paragraph 15.

67 See Synstar Computer Services v. ICL [2001] CP Rep 98; and National Grid v. ABB and Others [2009] EWHC 1326 (Ch).

68 The 'dominant purpose' test, as applied to legal advice privilege, was recently approved by the Court of Appeal in The Civil Aviation Authority v. Jet2.Com Ltd [2020] EWCA Civ 35.

69 Balabel & anor v. Air India [1988] 2 WLR 1036.

70 Three Rivers District Council and Others v. The Governor & Company of the Bank of England (No. 5) [2003] Q.B. 1556, followed in The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006.

71 Three Rivers District Council and Others v. The Governor & Company of the Bank of England (No. 6) [2005] 1 AC 610. For a recent example of the application of these principles, see The State of Qatar v. Banque Havilland SA and another [2021] EWHC 2172 (Comm).

72 For example, in The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006, the Court of Appeal held that, while not every expression of concern by the Serious Fraud Office (SFO) would be regarded as adversarial proceedings, when the SFO specifically stated to a company that there was a prospect of a criminal prosecution, notwithstanding that further investigation by the company was first required, adversarial proceedings would be reasonably in prospect.

73 [2012] CAT 6.

74 Property Alliance Group Ltd v. Royal Bank of Scotland Plc [2015] EWHC 1557 (Ch); [2016] 1 W.L.R. 361. See also the Financial Conduct Authority Enforcement Guide 3.11.13.

75 Unilever Plc v. Proctor & Gamble Co [2000] 1 W.L.R. 2436.

76 Property Alliance Group Ltd v. Royal Bank of Scotland Plc [2015] EWHC 1557 (Ch); [2016] 1 W.L.R. 361.

77 CA98, Schedule 8A, Paragraphs 5(1), 28(a) and 32(1); see also CPR, Practice Direction 31C, Paragraphs 2.12 and 2.14.

78 AB Volvo and others v. Ryder Limited and others [2020] EWCA Civ 1475, Paragraphs 134 and 143, in particular.

79 CA98, Schedule 8A, Paragraph 39.

80 id., Paragraph 41.

81 CA98, Section 49A(5).

82 CAT Rule 94(9).

83 Eco Swiss China Time Ltd v. Benetton International N.V., C-126/97 [1999] ECR I-3055, EU:C:1999:269, Paragraphs 35–39, in particular.

84 See, most recently, Alexander Brothers Ltd (Hong Kong SAR) v. Alstom Transport SA [2020] EWHC 1584 (Comm), Paragraphs 181–183, in particular.

85 Microsoft Mobile Oy v. Sony [2018] 1 All ER (Comm) 419.

86 CPR, Rule 20.2.

87 Limitation Act 1980, Section 10.

88 Civil Liability (Contribution) Act 1978, Section 2(1).

89 CA98, Schedule 8A, Paragraphs 15 and 41.

90 id., Paragraph 38(2)–(3).

91 Merricks v. Mastercard [2020] UKSC 51, Paragraph 118.

92 Consumers' Association v. Qualcomm Incorporated, Case No. 1382/7/7/21.

93 See, for example, the CAT's decision in Justin Gutmann v. First MTR South Western & Ors [2021] CAT 31, in which the CAT noted that '[t]he law on what constitutes unfair trading conditions, in particular, is in a state of development' (Paragraph 60) and refused to strike out the claim that the system for selling certain train fares was an abuse of dominance in breach of CA98, Section 18 and Article 102 TFEU.

94 See statement by the CMA's director of litigation, Jessica Radke (https://globalcompetitionreview.com/legislation-and-guidance/cma-likely-intervene-in-private-competition-claims-says-official); see also CAT Rule 50 and Epic Games, Inc. and Others v. Alphabet Inc., Google LLC and Others, Case No. 1378/5/7/20 where the CMA was granted permission to intervene.

96 id., Part 2.

97 id., Paragraphs 158–161.

98 See, for example, the CJEU decision in Sumal SL v. Mercedes Benz Trucks España SL, Case C-882/19, rendered on 6 October 2021.

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