The Private Competition Enforcement Review: United Kingdom - England & Wales
Overview of recent private antitrust litigation activity
For much of 2020, private antitrust litigation in England and Wales held its breath, awaiting the judgment of the Supreme Court in the Merricks v. Mastercard collective damages claim, finally issued on 11 December 2020.2 The judgment is summarised below. Competition lawyers more generally, together with the rest of the country, also spent the year waiting for the outcome of the Brexit negotiations, finally learning on 24 December 2020 what the resulting shape of the relationship between the EU and the UK would be. This will have an impact on private competition enforcement, although changes in this area of competition are likely to be relatively minor for the next five years at least, while existing EU-based claims proceed through the system.
A number of major claims continued in the English courts, with important rulings on preliminary issues in many cases, including relating to the effect of EU decisions and judgments in English proceedings, in the Court of Appeal in Volvo and others v. Ryder and others and by the Supreme Court in Secretary of State for Health v. Servier and others, both referred to in Section X, and on limitation periods, in Granville v. Infineon and Federal Deposit v. Barclays, both referred to in Section II. Some claims settled, while others, including an increasing number of stand-alone claims, commenced.
The major private competition enforcement case of the year, the landmark judgment of the UK Supreme Court in Merricks v. Mastercard, is expected to have a significant impact on collective actions, not only in the UK but also further afield. The Supreme Court found that the Competition Appeal Tribunal (CAT) had incorrectly rejected an application for certification to bring collective proceedings (i.e., confirmation of whether a case is eligible for a collective action). The judgment specifies important clarifications on the framework to be applied by the CAT when certifying such proceedings, and indicates that these requirements should be applied more flexibly, creating a more claimant-friendly landscape for these group actions.
In 2016, Mr Merricks brought a collective claim against Mastercard on behalf of a class of some 46 million consumers, in a claim stated to be worth some £14 billion. The proposed class included all persons who had, between 22 May 1992 and 21 June 2008, bought goods or services from businesses selling in the UK that accepted Mastercard (and who also satisfied a couple of other conditions). The claim brought on their behalf was for losses alleged to result from the credit card multilateral interchange fee (MIF) arrangements. Under the collective proceedings rules, the CAT was required to consider whether to certify the claim. It refused to issue a collective proceedings order, on the grounds that the claim was not 'suitable' for collective proceedings, for two reasons:3
- the CAT considered that Mr Merricks had not provided sufficient evidence of a sound methodology for calculating damages (and in particular for calculating how losses were passed on to each consumer by the relevant retailers); and
- the CAT considered that distribution of damages to members of the class on the proposed per capita basis did not take account of individual spending habits and therefore of the loss suffered by each individual consumer, and therefore any damages would not be 'compensatory'.
The Court of Appeal overturned this judgment.4 It held that the CAT had set too high a standard at the certification stage, effectively conducting a 'mini-trial' of the merits. The class representative could not be expected to specify in detail at the certification stage what evidence would be available. This would be provided at a later stage. The Court of Appeal also considered whether the CAT was wrong to reject the proposed distribution method at the certification stage.
On appeal by Mastercard, the Supreme Court agreed with the Court of Appeal. It considered that the normal compensatory approach to individual claims was inappropriate for collective actions, as compensatory principles had been modified by the regime. The only requirement was that the distribution should be 'just in the sense of being fair and reasonable'. Furthermore, a claimant should not be deprived of a trial 'merely because of forensic difficulties in quantifying damages', as there were a number of other circumstances, in fields outside competition damages claims, where damages could not be easily calculated using scientific analysis alone. The CAT had also failed to consider whether individual proceedings were a relevant alternative to collective proceedings, which they were not, and whether the same difficulties on quantification would affect an individual claimant.
A relevant factor in assessing whether the claim is suitable for certification as a collective claim is proportionality – where there are consumers who have claims worth a few hundred or a few thousand pounds, it would not be proportionate to bring those claims individually, and collective proceedings may be more suitable.
The Supreme Court also found that the CAT had made an error of law in determining that the pass-on issue was not common to all the claims. If the CAT had reached the correct conclusion, then both the main issues would have been common issues, which would have weighed heavily in favour of certification. The Supreme Court recognised that there was no requirement that all the significant issues in the claim must be common issues, but clearly it points against certification if the common issues are limited in scope or significance.
This judgment is expected to unlock claims in a number of other sectors that have been on hold pending the outcome, including collective claims resulting from the Trucks cartel5 and the Foreign Exchange cartel6 (where two representatives are seeking certification of their claims).
General introduction to the legislative framework for private antitrust enforcement
It has long been accepted that those who have suffered loss as a result of competition law infringements are entitled to claim damages. The House of Lords acknowledged the possibility of damages for breaches of competition law in 1984 in Garden Cottage Foods v. Milk Marketing Board.7 In 2002, the Enterprise Act 2002 inserted Section 47A into the Competition Act 1998, giving the CAT (a specialist competition tribunal that already heard appeals against decisions of the competition authorities) the power to hear follow-on damages claims based on infringement decisions of the European Commission and the UK competition authorities. Section 47B of the Competition Act 1998 also provided for limited opt-in collective claims brought by certain designated representative bodies on behalf of consumers. A number of claims under Section 47A followed. However, this procedure had a relatively low level of uptake because of deficiencies in the drafting of the legislation and rules that limited the scope of Section 47A to strict follow-on claims, and that created very restrictive limitation rules. Claims were constrained by the 'clearly identifiable findings of infringement' in the underlying decision of the competition authority and could not be based on any sort of inference from a decision.
As claimants often wish to claim that an infringement went on for longer, or was wider in scope, than expressly found in an infringement decision, this was a significant restriction of the usefulness of the CAT. The Court of Appeal also held that claimants could not bring proceedings against defendants that were not specifically named as addressees of a decision, which presented a further obstacle to claims as it is often useful to be able to claim against other members of corporate groups in order to anchor jurisdiction in the UK.8 Claimants at that time had a period of two years after the end of appeal proceedings in respect of the underlying decision, or after the date on which the cause of action accrued, if later, in which to bring their claims.
Meanwhile, the High Court had become one of the most popular forums in Europe for competition damages claims following cartel decisions of the European Commission. Claims in the High Court are brought under the common law jurisdiction of the Court, generally as claims for breach of statutory duty.9 They were subject to the standard six-year limitation period under the Limitation Act 1980. However, the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 implemented the relevant provisions of the Competition Damages Directive. They inserted Section 47F into the Competition Act 1998, which in turn introduced a new Schedule 8A to the Act. Paragraphs 17 to 26 of Schedule 8A set out the amended rules on limitation periods. They differ in a number of important respects from the general rule in England and Wales, set out in the Limitation Act 1980. The general rule under the Limitation Act 1980 is that the limitation period starts when the cause of action accrued. However, where the defendant deliberately concealed from the claimant any fact relevant to the claimant's right of action, the limitation period does not start to run until the claimant has discovered the concealment or could with reasonable diligence have discovered it. This issue came before the English courts twice in 2020. In Granville and others v. Infineon and others,10 the High Court held that Granville's claim against members of the DRAM cartel was time-barred because the existence of investigations into the cartel could, with reasonable diligence, have been discovered at an earlier stage. In contrast, in Federal Deposit Insurance Corporation v. Barclays Bank and others,11 the court held that there was not sufficient information for the claimants to have pleaded their case earlier. For competition claims, while Paragraph 19 introduces rules that are very similar to those set out in the Directive (under which time does not start to run until the claimant first knew or could have known of certain specified facts relating to the infringement), it also introduces the other key requirement of the Directive: namely, that the limitation period does not start until the infringement has ceased. In its judgment in Arcadia v. Visa12 in 2015, the Court of Appeal held that a claim by retailers in respect of losses resulting from credit card interchange fees was out of time in respect of losses suffered before 2007 (six years before the date of the claim) because sufficient facts to allow the claimants to plead their claim were available to them before that date. The Court of Appeal concluded that the Directive did not have retrospective effect, but it appears that had it done so, the entirety of the claim might still have been in time (because the infringement continued until less than six years before the date on which the proceedings were started). As such, Paragraph 19(1)(a) has potentially far-reaching effects. Paragraphs 20 to 25 of Schedule 8A set out a number of situations in which the limitation period is suspended, including while an investigation by a competition authority is ongoing, while a consensual dispute resolution process is in progress and while collective proceedings are pending.
In 2015, the provisions of Chapter 2 of Part 3 of the Consumer Rights Act 2015 entered into force. They amended Sections 47A and 47B, and introduced Sections 47C to 47E and 49A to 49E, of the Competition Act 1998. They introduced a number of refinements to proceedings before the CAT. First, Section 47A extended the jurisdiction of the CAT to permit stand-alone as well as follow-on claims, addressing one of the key concerns about the previous arrangements. However, Section 47A provided only a partial fix, because there remains some doubt as to whether it provides for stand-alone claims for infringements occurring before 1 October 2015. Second, Section 47E aligned limitation periods in the CAT with those in the High Court. Third, Section 15A of the Enterprise Act 2002 provided for fast-track competition claims where one of the parties is a small or medium-sized business and the claim is relatively straightforward.13 Fourth, Section 47B introduced collective competition damages claims. These were intended to resolve the obstacles faced by small claimants bringing claims individually. Section 47B introduced the possibility of both opt-out and opt-in collective proceedings (where all those falling within an identified class of potential claimants are included in the claim unless they opt out, or where the claim is brought on behalf only of those claimants who have expressly chosen to participate, respectively). In both cases, the claim is brought on behalf of the claimants by a representative. As explained in Section I in the context of the Merricks claim, the CAT must certify a collective claim before it proceeds, considering both the suitability of the class representative and whether the claims 'raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings'.14 Some clarity is now provided by the judgment of the Supreme Court referred to in Section I.
The UK exit from the EU, which became final on 31 December 2020, also imposes a number of changes to private competition enforcement. Essentially, the current framework remains largely unchanged, except that in future, the UK will not provide for the private enforcement of EU competition law, or recognise decisions or actions taken by the European Commission or the competition authorities of EU Member States. Specifically, the UK competition authorities will no longer apply EU competition law, but only UK competition law. The UK authorities will not be part of the EU enforcement framework, so will not, for example, be prohibited from investigating cases in parallel with the European Commission. The English courts will no longer be prohibited from making findings that run counter to decisions of the European Commission, and leniency statements and settlement discussions created in the process of cartel investigations by the European Commission will no longer be expressly protected from disclosure in English competition litigation. However, there are important exceptions. In particular, large parts of EU competition legislation and guidance; for example, block exemption regulations that automatically exempt certain categories of agreements from the prohibition on anticompetitive agreements in Article 101 of the Treaty on the Functioning of the European Union (TFEU), have been imported into UK law to retain a comprehensive body of competition rules in the UK following Brexit. Notably, the 'governing principles' clause in the Competition Act 1998, which ensured that issues arising under UK competition law were to be interpreted in a manner consistent with the interpretation of the corresponding issues under EU law, is revised, now requiring consistency with the body of EU competition law as it stood on 31 December 2020, while permitting the English courts to depart from that case law where there are relevant changes or developments. However, even in its weakened form, the governing principles clause provides considerable certainty of consistency in ongoing competition enforcement in the UK. A particularly important principle for private enforcement is that claims based on EU competition law may be continued, and may continue to be made, in respect of infringements that took place before exit day, if they could have been made before exit day.15 So given the six-year limitation period in the English courts, it is likely that the English courts will continue to see damages claims based on infringements of EU competition law, both follow-on and stand-alone, at least until 2026. In addition, claims may be brought on the basis of EU proceedings that were in progress with the European Commission at exit date. However, no more references from English courts to the European Court of Justice will be made for preliminary rulings on questions of interpretation of EU law.
Conduct and agreements that affect trade within the UK, or that affect trade between EU Member States, are capable of infringing the UK and EU competition rules, respectively,16 wherever the undertakings engaging in the conduct or entering into the agreements are located.
In practice, one of the key battlegrounds in private enforcement in the English courts has been the extent to which foreign defendants can be sued in the English courts for losses resulting from international cartels. This issue has been the subject of numerous sets of proceedings before the English courts, addressed both in the judgment of the Court of Appeal in iiyama,17 on the subject of the circumstances in which purchases of cartelised products outside the EU can be said to fall within the scope of Article 101 TFEU, and in Vattenfall v. Prysmian.18 In the latter, the High Court rejected an application to strike out a claim following the Commission's High-Voltage Cable cartel decision, on the basis that there was a realistic prospect that the UK anchor defendants had knowingly implemented the cartel through sales of the cartelised products and the provision of support in respect of the sale of cartelised products. The judgment usefully develops the principles established some years previously in Cooper Tire and Rubber v. Dow and others19 and KME Yorkshire and others v. Toshiba Carrier and others.20 As a result of Brexit, the UK is no longer governed by the arrangements set out in the Recast Brussels Regulation,21 which sets out the circumstances in which EU defendants may be sued in jurisdictions other than the one in which they are domiciled. However, the English Civil Procedure Rules similarly provide for non-UK defendants to be sued in the English courts where (subject also to other conditions) they are a necessary or proper party to proceedings served on defendants present in England. So proceedings against international cartelists, anchored on defendants served in England remain possible. In tort claims, the Civil Procedure Rules also permit a defendant to be served out of the jurisdiction where damage was sustained (or will be sustained) within the jurisdiction, or if the damage that has been or will be sustained resulted from an act committed or likely to be committed within the jurisdiction. The number of defendants arguing that England is not the most appropriate forum for the dispute (which was an argument not generally available under the European regime) is likely to increase.
Any person suffering loss as a result of an infringement of competition law has standing to bring a claim.22 It was clear even before implementation of the EU Competition Damages Directive that, subject to issues of causation, pass-through, etc., both direct and indirect purchasers from infringing parties could claim damages for their loss resulting from an infringement. This was confirmed in the UK rules implementing the Directive, which set out the treatment of pass-through in the case of both direct and indirect purchasers. In accordance with the Kone judgment of the European Court of Justice,23 a number of proceedings in the English courts have included claims for umbrella losses: overcharges resulting from non-members of a cartel increasing their prices in line with the 'market' price set by cartel members. The rules in this area remain unaffected by Brexit – Kone is part of the pre-31 December 2020 EU case law that is retained in UK law, although, of course, English courts are now at liberty to diverge from these principles in future. Class representatives in collective proceedings, once certified by a collective proceedings order, have standing to claim on behalf of all members of the class even if they do not themselves fall within the class.
The process of discovery
The introduction, in Article 5, of a requirement for disclosure of relevant evidence was an important and novel aspect of the Competition Damages Directive in most EU Member States. However, disclosure in English court proceedings is well-established and extensive (and has historically been one of the main attractions of the English courts in competition damages proceedings), going some way towards addressing the information asymmetry that claimants commonly encounter. Schedule 8A to the Competition Act 1998, which implemented the Directive in English law, therefore introduced no additional disclosure requirements, as the implementing rules did in most other Member States. Instead, it is concerned chiefly with setting out the exceptions to disclosure, reflecting the requirements of Articles 6 and 7 of the Directive, in the case of leniency and settlement materials, and other materials generated during the course of an investigation by competition authorities. These rules are set out in Paragraphs 27 to 35 of Schedule 8A. As a result of Brexit, leniency statements and settlement discussions created in proceedings before the European Commission or an EU Member State competition authority will no longer be automatically protected. However, it remains to be seen whether English courts decide to offer protection to foreign leniency and settlement materials on the grounds of international comity or other similar principles.
The basic principle in English litigation is that each party must carry out a reasonable search for material currently or previously under its control that supports or is adverse to its case. It must disclose those documents by exchange of lists to the other party and then, subject to exceptions for privilege, must provide copies of those documents and allow the other party to inspect any original documents.24 In follow-on private competition claims in the English courts it is very common for the parties to seek disclosure of specific categories of documents; for example, documents provided to competition authorities, at an earlier stage than would usually be the case. The judgment in National Grid v. ABB25 provides a good example of this. There is also scope for the parties to request further information from each other in relation to issues set out in their pleadings. In addition, it is possible, subject to certain conditions, to obtain disclosure from third parties. The parties will also have to exchange detailed witness statements setting out the evidence that their witnesses will rely on at trial and upon which they will be cross-examined. There is no deposition process pretrial in English proceedings.
Use of experts
The use of expert economic evidence is almost universal in private competition enforcement proceedings. Other experts are also often brought in, particularly in abuse of dominance cases, to testify as to the operation of a particular market or other technical issues.26
Although expert economists generally submit their reports when the proceedings are well advanced, it is common to involve them from the outset to provide initial advice on the scope and shape of a claim. Expert economists have also appeared in the collective proceedings order hearings giving evidence as to whether there are sufficient common issues as between the members of the class of prospective claimants to justify certifying the collective proceedings.
While the standard arrangement is for each party to call its own expert witnesses separately, for them to be cross-examined by the other party's counsel, competition damages claims in the English courts are starting to see the emergence of hot-tub arrangements, in which each party's economists appear concurrently and are then questioned by both sets of counsel and by the judge, allowing their evidence to be more easily compared and tested.27 The court's assessment of the parties' expert evidence was central to the outcome of the BritNed v. ABB claim.28
As explained in Sections I and II, collective proceedings for competition damages claims may be brought before the CAT. Collective proceedings are subject to certification by the CAT. If properly formulated, collective proceedings allow a much wider range of victims of anticompetitive activity to claim damages for their loss. Bringing individual claims would simply not be feasible for the value of loss typically suffered by an individual consumer. It is clear that there is a tension between increasing the efficiency of collective proceedings by framing a class as widely as possible, thereby increasing the number of members of the class, and ensuring that the class is not so wide that the issues in the claims are no longer common to all of the members of the prospective class. Some of the conflicts in this area were resolved in the Supreme Court's Merricks v. Mastercard judgment referred to in Section I, but given the scale of these claims, Merricks is unlikely to be the final word in this area. There are a number of other mechanisms for class actions available in the courts of England and Wales, including group litigation orders (GLOs) and representative actions (which are comparatively rarer than GLOs).
Damages in private competition claims are intended to compensate for the loss resulting from an infringement of competition law. Nearly all competition damages claims to date have settled, with little or no visibility of the basis or extent of any damages agreed. However, the calculation of competition damages will typically involve an assessment of the counterfactual or 'but for' position: that is, what prices would have prevailed in the absence of the infringement. To assess what would have happened in the absence of a cartel, prices before and after the cartel period, prices of other comparable products, prices of raw materials or components, and the level of profitability of the cartel members will all be taken into account to build up a picture of the but for price. There will also generally be an assessment of the losses resulting from any reduction in sales resulting from increased prices, as well as of the run-off effect of the time taken for prices to return to a non-cartelised level after the end of the cartel. In Sainsbury's v. Mastercard,29 the CAT assessed the overcharge as the difference between the MIFs paid and the bilateral interchange fees that would have been paid in the counterfactual situation. In BritNed v. ABB, the Court of Appeal in 2019 set out important principles about the primarily compensatory nature of competition damages.
There is no provision for multiple damages as seen in the United States, for example. Exemplary or punitive damages are also not available. However, in contrast to the position in the United States, interest on damages runs from the date when the loss was suffered. This may be many years before payment of any damages, and interest can therefore be a very significant component of any award.
There is no pass-on defence in English law. The impact of any pass-on is assessed as part of the assessment of loss generally. The rules implementing the EU Competition Damages Directive set out the treatment of pass-on in claims by both direct and indirect purchasers. Paragraphs 8 to 11 implement the provisions of Articles 12 to 15 of the Directive that set out rules relating to overcharges, underpayments and pass-on. They provide that, if the claimant was an indirect purchaser, once it has established that there was an overcharge or underpayment to a direct purchaser, the burden of proof lies on the defendant to prove that it was not passed on to the claimant. They also provide that the burden of proof lies on the defendant to prove that any overcharge or underpayment to the claimant was passed on to the claimant's customers. However, in another two competition claims that came before the Supreme Court in 2020, Sainsbury's and others v. Visa and Mastercard,30 again in relation to credit card interchange fees, the Court held that the defendants were not required to provide a greater degree of precision as to the level of pass-on than the claimants. The claims have now returned to the CAT for further consideration. These rules remain unaffected by Brexit, although again there is scope for divergence over time.
By virtue of the principle first set out in the Masterfoods judgment of the European Court of Justice,31 and then codified in Article 16 of Regulation (EC) No. 1/2003, national courts may not take decisions 'running counter to the decision adopted by the Commission'. They must also 'avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated'. In the English courts, in National Grid v. ABB, for example, this principle was interpreted to mean that while the trial should not be fixed until three months after all appeals by the defendants against the Commission's decision had been determined, the parties should proceed with the exchange of pleadings, disclosure and other preparatory steps. A similar approach has been adopted in other cases since then. Article 9 of the Competition Damages Directive also provides for the binding nature of national competition authorities in the courts of the same Member State, and for decisions of other competition authorities to be admissible at least as prima facie evidence.
The effect of EU decisions and judgments was the subject of two important judgments in the English courts in 2020. In Volvo and others v. Ryder and others,32 the Court of Appeal held that the recitals (i.e., the detailed paragraphs of a Commission settlement decision describing the infringement) that acted as the essential basis or the necessary support for a determination in the operative part of the decision (i.e., the short formal record of the infringement) were binding in subsequent damages proceedings. However, given the fact-specific nature of this exercise, the Court considered that no more than 20 out of 136 recitals were binding in this case. The Court also held that it would be an abuse of process as a matter of English law for the defendants to deny the facts admitted to in the settlement proceedings. However, in Secretary of State for Health v. Servier,33 the Supreme Court held that findings by the EU General Court in Servier's appeal against the decision of the European Commission fining it for infringement of Article 101 and 102 TFEU would be binding only if not overturned by the European Court of Justice, and in any event only in relation to the legal context of the appeal.
After Brexit, these rules will continue to apply to decisions of the UK competition authorities, but not expressly to decisions of the European Commission. However, Volvo v. Ryder suggests that English courts may be unsympathetic to arguments that they should disregard admissions in EU settlement or other decisions, even after Brexit.
The English courts recognise legal advice privilege, covering advice by lawyers to their clients provided in a relevant legal context, and litigation privilege, covering communications between a client and a lawyer or between either of them and a third party where litigation is underway or reasonably in contemplation, which have been made for the dominant purpose of litigation. In its judgment in SFO v. ENRC34 in September 2018, the Court of Appeal overturned the controversial and narrow approach taken by the High Court regarding the remit of litigation privilege in the context of a contemplated criminal investigation. It declined to rule on the scope of legal advice privilege (and specifically the restrictive rule in Three Rivers (No. 5),35 commenting that it is for the Supreme Court to decide this issue. Further clarification is to be hoped for; meanwhile, care should be taken in this area.
English law does not recognise joint work product defences as such. In some circumstances, two parties may have a joint interest in the subject matter of a privileged communication such that they may share the document without loss of privilege. Similarly, communications that are already subject to legal advice privilege or litigation privilege may in some circumstances be shared with a third party (in the context of private competition enforcement, typically a co-defendant) without automatically losing that privilege where the two parties have a common interest. Again, this is a complex area and specific advice should be sought.
Most competition damages claims before the English courts settle – some at an early stage and some at trial – with the result that there have only been two final judgments awarding damages in competition damages claims to date.36 Settlement is encouraged. Part 9 of Schedule 8A to the Competition Act 1998 implements the rules in the Competition Damages Directive on settlements, providing for the value of claims to be reduced by a settling infringer's share of the loss. It also prohibits non-settling defendants from seeking a contribution from the settling defendant, so an early settling defendant that settles for less than its share of any overall damages pot cannot then be required to indemnify defendants that settle or are ordered to pay a higher proportion later. This seems likely to incentivise early settlement. These rules remain unchanged by Brexit.
Competition damages claims can be, and are, the subject of arbitration and other forms of alternative dispute resolution. This may in some circumstances be agreed at the time a claim is first contemplated. In Microsoft v. Sony,37 the High Court stayed proceedings because it concluded that the dispute was covered by a pre-existing arbitration clause.
Indemnification and contribution
The general principle is that liability for losses caused by infringement of the competition rules is joint and several, and that defendants may seek contributions from each other. However, Schedule 8A to the Competition Act 1998, implementing the EU Competition Damages Directive, sets out rules that limit the liability of certain parties to make contributions. Again, these rules remain unchanged by Brexit.
Future developments and outlook
As explained above, a key development that is certain to affect competition litigation in the English courts is Brexit. Estimates of its impact vary considerably. The advantages of litigating in the English courts are sufficiently significant that many claimants and their lawyers are likely to seek to continue to bring their claims in London for as long as they can. A number of issues remain to be resolved, and it is not yet clear how they will be.
1 Peter Willis and Jonathan Speed are partners at Bird & Bird LLP.
2 Mastercard Incorporated and Others v. Walter Hugh Merricks CBE  UKSC 51.
3 Walter Hugh Merricks CBE v. Mastercard Incorporated and Others  CAT 16.
4 Walter Hugh Merricks CBE v. Mastercard Incorporated and Others  EWCA Civ 674.
5 UK Trucks Claim Limited v. Fiat Chrysler Automobiles N.V. and Others, http://www.catribunal.org.uk/cases/12827718-uk-trucks-claim-limited.
6 Michael O'Higgins FX Class Representative Limited v. Barclays Bank PLC and Others, http://www.catribunal.org.uk/cases/13297719-michael-ohiggins-fx-class-representative-limited; and Mr Phillip Evans v. Barclays Bank PLC and Others, http://www.catribunal.org.uk/cases/13367719-mr-phillip-evans.
7 Garden Cottage Foods Ltd v. Milk Marketing Board  1 AC 130.
8 Emerson Electric Co & Others v. Mersen UK Portslade Ltd  EWCA Civ 1559.
9 Although there have also been attempts to characterise such claims as various forms of conspiracy – with varying degrees of success.
10 Granville Technology Group Ltd (In Liquidation) v. Infineon Technologies AG  EWHC 415 (Comm).
11 Federal Deposit Insurance Corporation v. Barclays Bank and others  EWHC 2001 (Ch).
12 Arcadia Group Brands Ltd & Ors v. Visa Inc & Ors  EWCA Civ 883.
13 See, for example, Socrates v. Law Society  CAT 10, the first fast-track claim. A number of others have followed.
14 Section 47B(6) of the Competition Act 1998.
15 The Competition (Amendment etc.) (EU Exit) Regulations 2019, Schedule 4, Paragraphs 14–17, as amended by the Competition (Amendment etc.) (EU Exit) Regulations 2020, Regulation 39.
16 Sections 2 and 18 of the Competition Act 1998, and Articles 101 and 102 of the Treaty on the Functioning of the European Union.
17 iiyama v. Samsung, Philips & LG  EWCA Civ 220.
18 Vattenfall v. Prysmian and NKT  EWHC 1694 (Ch).
19 Cooper Tire & Rubber Company Europe Ltd & Ors v. Dow Deutschland Inc & Ors  EWCA Civ 864.
20 KME Yorkshire Ltd & Ors v. Toshiba Carrier UK Ltd & Ors  EWCA Civ 1190.
21 EU Regulation No. 1215/2012.
22 This is expressly provided, in the case of claims before the CAT, by Section 47A Competition Act 1998.
23 Case C-557/12 ÖBB-Infrastruktur AG v. Kone and others, ECLI:EU:C:2014:1317.
24 Civil Procedure Rules, Part 31.
25 National Grid Electricity Transmission Plc v. ABB Ltd & Ors  EWHC 869 (Ch).
26 See, for example, the useful description of the expert witnesses relied on in Paragraphs 47 to 49 of Streetmap EU Limited v. Google Inc and others  EWHC 253 (Ch).
27 First used in the High Court in Streetmap v. Google  EWHC 253 (Ch); a hot-tub arrangement was also employed in the CAT in Socrates v. Law Society, see footnote 13.
28 BritNed Development Limited v. ABB  EWCA Civ 1840.
29 Sainsbury's Supermarkets Ltd v. Mastercard Incorporated and Others  CAT 11, see on appeal to the Supreme Court at footnote 30.
30 Sainsbury's Supermarkets Ltd (Respondent) v. Visa Europe Services LLC and others (Appellants) and Sainsbury's Supermarkets Ltd and others (Respondents) v. Mastercard Incorporated and others (Appellants)  UKSC 24.
31 Case C-344/98 Masterfoods Ltd v. HB Ice Cream Ltd, ECLI:EU:C:2000:689.
32 AB Volvo and others v. Ryder Limited and others  EWCA Civ 1475.
33 Secretary of State for Health and others v. Servier Laboratories Limited  UKSC 44.
34 The Director of the SFO v. Eurasian Natural Resources Corporation Limited  EWCA Civ 2006.
35 Three Rivers District Council & Others v. The Governor and Company of the Bank of England  EWCA Civ 474.
36 Sainsbury's v. Mastercard, footnote 29 and BritNed v. ABB, footnote 28.
37 Microsoft Mobile OY (Ltd) v. Sony Europe Ltd & Others  EWHC 374 (Ch).