The European Antitrust Review 2015

United Kingdom: Private Antitrust Litigation


Private enforcement of competition laws has long been viewed by regulators as a complement to public enforcement, and the principle that victims of anti-competitive conduct are entitled to compensation for the harm they have suffered is well established in law.2 For many years, commentators have been anticipating a rapid increase in the level of private antitrust litigation, but in reality the floodgates have yet to open.

Regulators have been left disappointed that the emergence of private actions has been held back by a number of practical obstacles inherent in national legal frameworks, including the variety of procedural rules that apply across the EU and the costs and evidential difficulties associated with bringing claims.

For those claims that have been brought, England and Wales has proven to be a popular jurisdiction owing to, among other things, its favourable disclosure rules and the willingness of the English courts to assert jurisdiction, where possible. Nevertheless, a number of obstacles remain intact, and legislators at EU and UK level are seeking to introduce a raft of reforms aimed at improving access to justice for consumers.

In the UK, the government has introduced the Consumer Rights Bill (the Draft Bill), which at the time of writing is making its way through Parliament. The purpose of the Draft Bill, which, inter alia, contains provisions to amend the Competition Act 1998 and the Enterprise Act 2002, is to establish the Competition Appeals Tribunal (CAT) as a major venue for private enforcement in the UK, and to make it easier for claimants to bring claims and to convert their legal rights into effective redress (in particular, by facilitating the possibility of opt-out collective actions).3 In addition, on 10 March 2014, the CAT published draft rules on collective actions, while a wider review of the existing CAT Rules is also expected.

At EU level, the European Commission introduced a Damages Directive (the Directive)4 and a non-binding Recommendation on Collective Redress.5 The former is intended to remove procedural obstacles to damages actions and to provide a yardstick for certain procedural issues across EU member states,6 while the latter proposes opt-in collective actions as a basic standard across all EU member states. Such European initiatives are likely to impact on national private enforcement, including the regime in the UK.

This article explores the current landscape for private actions in the UK, taking into account recent case law developments and the anticipated legislative changes at EU and UK level. If, as anticipated, these amendments lead to an increase in the level of private antitrust litigation in the UK (and more widely), 2014 may well be seen as the breakthrough year in relation to this developing area of law.

Establishing jurisdiction in the UK

Potential claimants seeking to pursue a claim for a breach of competition law will often seek to bring their claims in a jurisdiction that is seen to be claimant-friendly (a process often referred to as ‘forum shopping’).

To establish jurisdiction against EU-domiciled defendants, claimants must turn to the provisions of the Brussels Regulation.7 Under article 2(1), the starting point is that a defendant should be sued in the jurisdiction in which it is domiciled. But a number of exceptions apply – notably in the competition sphere article 6(1), which contains the rules relating to so-called anchor defendants.8 Here, in relation to claims against multiple defendants, claimants can bring proceedings in the national courts of the jurisdiction in which any of the defendants are domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together so as to avoid the risk of conflicting or irreconcilable judgments arising from separate proceedings.9

The English courts have demonstrated a clear willingness to take jurisdiction, even in circumstances where private actions are brought against UK subsidiaries of foreign addressees of infringement decisions and where the UK subsidiary itself was not a named addressee of that decision. See, for example, the decisions of the English courts in Provimi,10 Cooper Tire11 and Toshiba Carrier,12 in which the courts ultimately concluded that participation in the implementation of the cartel by the subsidiary, even in the absence of knowledge of its existence, was sufficient to establish jurisdiction.

Outside the Brussels Regulation, claimants have also sought to establish jurisdiction by reference to contractual jurisdiction clauses. The recent Court of Appeal ruling in Ryanair Limited v Esso Italiana SRL,13 however limits the extent to which that will be possible. In 2006, Esso Italiana was found by the Italian Competition Authority to have breached what is now article 101 TFEU by virtue of its involvement in a price-fixing and information-sharing cartel relating to the sale of jet fuel at Italian airports. Ryanair, one of Esso Italiana’s customers, subsequently brought a follow-on action in the English High Court, seeking to rely on a contractual term which stated that the supply agreement between Ryanair and Esso Italiana would be governed by the laws of England and that the parties would submit to the non-exclusive jurisdiction of the English courts. Ryanair advanced both a contractual claim, arguing that by virtue of its participation in the cartel Esso had charged prices that had not conformed to applicable laws, and a tortious claim for breach of statutory duty, again arising from the breach of article 101.

The Court of Appeal held that as a matter of construction the contractual element of Ryanair’s claim failed since the jurisdiction clause did not envisage the bringing of a claim on the basis of a breach of article 101. In the absence of a valid contractual claim, the court concluded that the rationale for bringing the tortious claim in the same jurisdiction fell away.

Extending the jurisdiction of the CAT

Private actions for breaches of competition laws can be brought either on a stand-alone basis (where there is no pre-existing infringement decision by a competition authority or regulator), or on a follow-on basis (where an infringement decision does exist). In the UK, however, the CAT currently only has jurisdiction to hear follow-on damages claims, and so it will often be the case that the only avenue open to a claimant will be to bring proceedings in the High Court.14 For the CAT, which has long been petitioning for an extended remit to hear stand-alone claims, this jurisdictional disability15 has been a source of frustration:

It seems somewhat anomalous that the specialist tribunal is entrusted with the decision as to infringement or no on an appeal from a regulator, but is not allowed to touch that question in a claim for damages.16

Claims that are brought before the CAT are often subject to lengthy procedural challenges on jurisdictional grounds, but the Draft Bill proposes a number of amendments to address the jurisdictional problems.

Stand-alone claims

Chief amongst the proposals is the welcome extension of the CAT’s jurisdiction to hear stand-alone claims in addition to follow-on actions (and hybrid claims containing a mixture of both).17

Limitation periods

The limitation period for bringing a claim in the CAT18 will also be extended in order to harmonise procedures with the High Court, where the limitation period for bringing a civil claim is six years from the date on which the cause of action accrued.19 In practice, this will mean that a six-year limitation period will apply to any claim brought in the CAT in England and Wales and Northern Ireland,20 whether stand-alone or follow-on.21

In Deutsche Bahn v Morgan,22 a case concerning the current CAT rules, the Supreme Court, reversing the Court of Appeal’s earlier decision, upheld the CAT’s finding that limitation periods must be determined in relation to each defendant individually. This followed a decision taken in December 2003 by the European Commission in which it imposed substantial fines on companies involved in the carbon and graphite products cartel.23 Originally, the CAT held that a follow-on action brought by Deutsche Bahn AG and others against Morgan Crucible (a leniency applicant) in December 2010 was brought out of time because the limitation period for claims against it, as a non-appealing addressee of the Decision, expired in February 2006 (ie, two years after the deadline expired for Morgan Crucible to lodge an appeal).

The Court of Appeal overturned the CAT’s earlier judgment, asserting that the question of limitation ought to be determined by reference to the infringement decision as a whole (ie, the limitation period should only begin to run once all appeals had been finally determined). However, in reinstating the original decision of the CAT, the Supreme Court ruled that ‘any appeal against the finding of infringement by any other addressees is irrelevant to a non-appealing addressee’.24 As a result, the limitation period for bringing a claim against Morgan was not extended by virtue of the fact that other addressees of the Commission’s infringement had lodged appeals. Accordingly, on 2 May 2014, the CAT published an order withdrawing the action against Morgan.25

Opt-out collective actions

One of the most significant reforms to be introduced in the UK is the decision to install a limited opt-out collective actions regime under a new section 47B of the Competition Act. The proposals seek to allow collective proceedings to be brought before the CAT either as opt-in proceedings (where proceedings are brought on behalf of each class member who opts in by actively notifying the class representative) or as opt-out proceedings (where proceedings are brought on behalf of each class member, except those who opt out by notifying the class representative in the manner and time specified)26 in both stand-alone and follow-on claims.

Mechanisms currently exist in England by which opt-in group actions can be brought,27 but in practice they are little-used: to date, only one representative action has successfully been brought (a claim by consumer group Which? against sports retailer JJB Sports in 2008 relating to replica football kits).

The prospect of an opt-out collective actions regime has not attracted universal support and some commentators have voiced concerns that it could lead to the emergence of a US-style litigation culture. It is also notable that the EU’s non-binding recommendation on collective redress expresses a preference for an opt-in model, and in this respect the UK proposals sit at odds with the EU recommendations.

The government, mindful of these concerns, has installed a sturdy set of safeguards aimed at protecting against any inadvertent consequences. Primarily, the CAT will have powers to assess the suitability of the proposed class representatives and to certify – by way of a collective proceedings order (CPO) – that claims are suitable to be brought as collective proceedings.28 In particular, the CAT will need to be satisfied that the claims raise ‘common issues’,29 but issues of commonality could, of course, raise some interesting questions in their own right. For example, among a hypothetical class of claimants that includes both direct and indirect purchasers, it is conceivable, if not almost certain, that while both types of purchasers may have a common interest in establishing the existence of an infringement, their interests may vary considerably when it comes to the causation and quantification stages. It remains to be seen how in practice the CAT will manage the initial stages of collective proceedings without straying into the realms of a mini-trial.

The Draft Bill also deals with the issue of who can bring collective actions, stating that claims should be brought either by an individual class member or by another representative if the CAT considers that it is just and reasonable for that person to act as the representative.

In spite of the concerns in relation to opt-out collective actions, it is clear that ultimately there is no point in giving rights of redress to citizens if there are no effective remedies and procedures enabling claimants to enforce those rights. The new proposals on collective actions are intended to bridge that gap.

Other legislative reforms

Fast-track procedure

A fast-track procedure will be introduced in the CAT in order for it to hear simple competition claims. The purpose of the fast-track procedure is to encourage SMEs to bring private actions against those larger companies that are alleged to have infringed competition rules, although the process will be subject to cost and evidence-based caps. Nevertheless, while the establishment of a fast-track procedure is undoubtedly a worthy aspiration, it remains to be seen precisely what types of competition cases can be siphoned off as simple.

Damages and injunctive relief

Currently, the CAT has power only to award damages. To the extent that claimants are seeking other forms of redress, such as injunctive relief, it will be necessary to pursue the case in the High Court. However, in keeping with the desire to extend the remit of the CAT, the Draft Bill intends to hand to the CAT the same powers as the High Court to grant injunctive relief30 – a particularly critical power given that the CAT will soon have jurisdiction to entertain stand-alone actions. To the extent that an injunction is not complied with, contempt of court proceedings can be launched in the High Court.

As regards damages for opt-out collective actions, the Draft Bill proposes that the CAT should be able to calculate damages on an aggregate group basis, as opposed to the current position in which defendants would be liable only for the loss suffered and quantified for each individual claimant who had opted-in. In this respect, the potential level of damages payable by defendants could, depending on the facts, be significantly higher under the new opt-out regime. Nevertheless, the powers of the CAT are to some extent limited as it will not be able to make an award of exemplary damages in collective actions.31

The Draft Rules on Collective Actions also state that any undistributed damages may, at the discretion of the CAT, be used to pay all or part of any costs, fees or disbursements incurred by the class representative, or may be paid to charity.32


In practice, many private claims are settled out of court. Settlements can take the form of financial settlement, commercial settlement or a combination of both. The Draft Bill includes provision for an opt-out collective settlement regime, under which the CAT will have power to ratify collective settlements provided it is satisfied that the settlement is just and reasonable. The CAT will specify how the settlement is to be distributed. Individuals within the class may opt in or opt out of the settlement.

UK disclosure rules

One potential obstacle to bringing a successful private action for breach of competition law is that claimants often lack the necessary documentary evidence required to prove their case. The UK’s broad disclosure rules have consequently seen it emerge as one of the jurisdictions of choice for claimants in private actions.

The traditional tension when it comes to disclosure in private antitrust cases is between maintaining the effectiveness of public leniency programmes and the requirement for claimants to have access to the documents necessary to prove their case.

The ECJ’s Pfleiderer judgment33 made clear that there is no overarching rule in EU law that automatically precludes the disclosure of leniency documents. Rather, the ECJ determined that it was a matter for national courts to decide on a case-by-case basis under their own domestic laws, taking into account a balancing exercise between the need to protect public leniency programmes with the need to promote the rights of private claimants.

In leaving this balancing exercise to the national courts, there is a risk that member states may adopt divergent approaches when it comes to the disclosure of leniency materials. The National Grid34 case demonstrates that the UK courts are in principle willing to order some limited disclosure of leniency materials, although it remains to be seen how this will play out in future cases and it is expected that this will continue to be a source of dispute.

In the light of the risk of differing approaches across jurisdictions, the Directive seeks to harmonise the approach to disclosure. It identifies three distinct categories of documents, which will be subject to different treatment when it comes to disclosure. The first relates to two specific types of documents which merit special protection from disclosure: leniency documents and settlement submissions. These, according to the Directive, should always be protected from disclosure. The second category effectively relates to investigation-specific documents (ie, those documents on the file of the regulatory authority that will enjoy temporary protection from disclosure until such time as the regulatory investigation has finished). This will include, for example, the statement of objections, any requests for information and replies to those requests. The third category is documents that were in existence prior to the investigation. Subject to the bounds of proportionality, such documents will be discloseable.

Turning to a separate issue in relation to disclosure, the Court of Appeal recently held35 that an English court can order French defendants to respond to a request for information, even if by submitting that response the defendant could then be potentially liable for criminal prosecution in France under the French Blocking Statute36 (which prohibits the provision of documents or information for the purposes of establishing evidence in judicial proceedings outside France).37

The Court of Appeal’s decision related to three appeals in two separate claims that were brought in the Chancery Division of the High Court: Servier and Alstom. In Servier, the High Court ordered the defendant to serve a response to specified parts of a request for information under CPR Part 18. In Alstom, the High Court ordered the disclosure of a number of documents, including a response to a statement of objections issued by the European Commission.

The defendants argued that such disclosure could put them in breach of the French Blocking Statute and contended that any such requests must follow the process laid down in European Council Regulation 1206/2001,38 which provides for the use of a cumbersome court-to-court judicial process to facilitate the taking of evidence in another member state in civil and commercial matters. This so-called court-to-court route would require the English court to make its request of the French court, which would in turn seek the evidence from the defendant.

The Court of Appeal was not swayed by the defendants’ arguments. It concluded that Regulation 1206/2001 was not intended to be the only way that documents could be obtained from foreign defendants; rather, it was aimed at increasing the options for doing so. The Court also ruled that, regardless of whether compliance with the English order might have given rise to potential liability under the French Blocking Statute, the English court still had jurisdiction to make the disclosure order in respect of civil proceedings because such matters are governed by English law as the lex fori. While the prospect of prosecution in France might constitute a factor in the exercise of the English’s court’s discretion, the Court of Appeal noted that there has only been one previous conviction under the French Blocking Statute since its inception in 1968. Further, the Court of Appeal went on to say that fundamentally EU law is supreme to French law and, as such, any attempt to use the French Blocking Statute to trump the requirement of EU law (including competition laws) would be highly unlikely to succeed.


Claimants are often discouraged from bringing private antitrust actions owing to the costs associated with doing so. In the English High Court, the general principle is that costs follow the event (ie, the loser pays), although the Court retains a discretion in making costs awards and in practice the winning party will never recover 100 per cent of its costs. The CAT has discretion to make any order it sees fit in relation to costs;39 unlike in the High Court, there is no general principle that costs follow the event.

In respect of collective actions, the proposed reforms in relation to costs under the Draft Bill aim to protect against an excessively litigious culture. The reforms will prohibit the use of damages-based agreements40 and, in successful collective actions, liability for costs will rest with the representative, rather than the individuals who form part of the class.41


At a European level, the issue of private enforcement of competition law has been on the Commission’s agenda for a number of years. Many of the proposals in the Directive, such as the proposal to harmonise disclosure obligations in order to ensure that claimants have access to the evidence needed to prove their case, are already reflected in the law and procedure in the UK. Combined with the permissive approach taken to jurisdiction, this has led to the UK being seen as a claimant-friendly jurisdiction and arguably the most popular forum for bringing follow-on claims in the EU.

Nevertheless, the changes to be introduced in the Consumer Rights Bill are significant: the Bill has been described by the government as setting out the most significant reforms to consumer law for a generation. The introduction of an opt-out collective action mechanism, in particular, is a landmark change. As the procedure will apply only to UK-domiciled claimants, it is unlikely that the UK will become a centre for pan-European collective actions, but it is reasonable to assume that domestic group action will become more prevalent. Exactly how this shapes up in practice will turn to a large extent on the approach of the CAT to issues such as approving class representatives.

While the changes to be introduced in England as a result of the Directive may be felt less dramatically than elsewhere in Europe, there is no doubt that there is a renewed focus on competition claims in the UK. Increasingly, as practice and procedure across Europe look to become more harmonised, it remains to be seen whether England can remain at the forefront of this area of law. The signs to date are that it can.

The authors would like to acknowledge the assistance in drafting this article of Paul McComb, Chris Ross and Amelia Payne.


  1. This chapter summarises the legal position as at 16 June 2014.
  2. See Case C-453/99 Courage Ltd v Bernard Crehan, and joined cases C-295/04 and C-298/04 Manfredi. Under Section 47A of the Competition Act 1998, a person who has suffered loss or damage by virtue of an infringement of relevant EU or UK competition law is entitled to bring a claim for damages suffered as a result of that infringement. A relevant infringement for these purposes is either: a European Commission finding that that either article 101(1) or article 102 of the Treaty for the Functioning of the European Union (TFEU) has been infringed; or a decision by a UK competition authority that article 101 or 102 TFEU and/or chapter I or chapter II of the Competition Act 1998 has been infringed.
  3. The relevant provisions in relation to private actions in competition law are contained in schedule 8 of the Draft Bill.
  4. The European parliament approved the Directive on 17 April 2014 and it is now over to member states in the European Council to ratify the pre-agreed text which was approved by the parliament. Once it becomes law, member states will have two years in which to incorporate the provisions of the Directive into national law.
  5. The Commission has also published a non-binding communication on quantifying harm in EU competition law damages actions and a staff working paper providing guidance on quantifying harm.
  6. While private damages actions have already gained some traction in Germany, the Netherlands and the UK, there is a desire at EU level to expand the ease with which claimants across the EU can bring such actions.
  7. Council Regulation No 44/2001.
  8. See also article 5(1) in relation to contract claims and performance, article 5(3) in relation to tort claims, article 23 relating to jurisdiction agreements, article 24 in relation to submission to jurisdiction and article 28 regarding related actions.
  9. In this regard, it is worth noting that the Directive confirms the principle of joint and several liability among cartelists for the damage caused by the cartel, subject to protections for leniency applicants.
  10. Provimi v Aventis [2003] EWHC 961.
  11. Cooper Tire & Rubber Co Europe Ltd and others v Dow Deutschland Inc and others [2010] EWCA Civ 864.
  12. Toshiba Carrier UK Ltd and others v KME Yorkshire Ltd and others [2012] EWCA Civ 169.
  13. Ryanair Limited v Esso Italiana SRL [2013] EWCA Civ 1450.
  14. See, for example, the decisions of the CAT and the Court of Appeal in Emersen Electric Co v Mersen UK Portslade Ltd (formerly Le Carbone (Great Britain) Ltd [2012] EWCA Civ 1559, in which it was concluded that owing to the follow-on nature of the provisions of section 47A, a claim could not be brought in the CAT against a UK subsidiary of a foreign addressee since the decision had not named the UK subsidiary as an addressee. The Court found that if the infringement decision intended to impose liability on the UK subsidiary, it should have either named it in the decision, or defined appropriately the named addressees of the decision.
  15. As described by Gerald Barling in a speech on 19 June 2013, entitled ‘Competition Litigation: what the next few years may hold’.
  16. Lloyd LJ in Enron Coal Services Limited (in liquidation) v English Welsh & Scottish Railway Ltd [2011] EWCA Civ 2, at paragraph 143.
  17. Schedule 8, paragraph 4 of the Draft Bill – proposed section 47A of the Competition Act 1998.
  18. Currently two years from the later of the date on which the substantive infringement decision becomes final and is no longer appealable, or the date on which the cause of action accrued.
  19. Limitation Act 1980. The cause of action will continue to accrue until the date on which the infringement ceases, with the result that the limitation period for bringing an action in the High Court will expire six years from the date on which the infringing conduct comes to an end. In cases where there is deliberate concealment of the infringing conduct (which is often a feature of cartels), the six year period will not begin to run until such time as the claimant either discovered the infringement or ought reasonably to have discovered it (Limitation Act 1980, section 32).
  20. The period in Scotland will be five years.
  21. The limitation periods can vary considerably across the EU member states since it is for domestic legal systems to prescribe the precise limitation periods. In an effort to harmonise procedures, the Directive states that the minimum limitation period in which a damages claim should be brought must be at least five years.
  22. Deutsche Bahn AG v Morgan Advanced Materials Plc (formerly Morgan Crucible Co Plc) [2014] UKSC 24.
  23. Commission Decision 2004/420/EC relating to Case C.38.359 Electrical and mechanical carbon and graphite products cartel.
  24. Deutsche Bahn AG v Morgan Advanced Materials Plc (formerly Morgan Crucible Co Plc) [2014] UKSC 24, paragraph 28. See also the decision of the General Court in Case T-462/07 Galp Energía España SA v European Commission (unreported) 16 September 2013 and the decision of the ECJ in Case C-310/97 Commission of the European Communities v AssiDomän Kraft Products AB [1999] ECR I-5363.
  25. It is also worth noting the Court of Appeal decision in OFT v Somerfield Stores Limited, Co-operative Group Limited; OFT v Gallaher Group Limited [2014] EWCA Civ 400 in which the Court of Appeal overturned the CAT’s decision to allow the appellants to appeal out of time against the OFT’s decision in relation to pricing agreements between tobacco manufacturers and retailers.
  26. Claimants who are not domiciled in the UK will be required to opt in.
  27. A ‘representative action’ requires the parties to have the ‘same interest’ in a claim; a ‘Group Litigation Order’ can be obtained where common issues arise.
  28. Prior to making the CPO, the CAT will hold a case management conference with the parties. The CAT will also consider whether the claims should be brought on an opt-in or an opt-out basis and in doing so will be required to consider the strength of the claims.
  29. See Rule 7 of the Draft CAT Rules on Collective Actions and the proposed section 47B(6) of the amended Competition Act (as contained in of schedule 8 of the Draft Bill), which states that collective proceedings must ‘raise the same, similar or related issues of fact and law’.
  30. It is currently expected that this power will be contained in a new section 47D of the Competition Act and Schedule 4 of the Enterprise Act.
  31. Section 47C(1) of the Draft Bill.
  32. Draft Rules on Collective Actions, Rule 21(3-6).
  33. Case C-360/09 Pfleiderer AG v Bundeskarellamt.
  34. National Grid Electricity Transmission Plc v ABB Ltd [2013] EWHC 822 (Ch).
  35. See Secretary of State for Health and others v Servier Laboratories Ltd and others; National Grid Electricity Transmission plc v ABB Ltd and others [2013] EWCA Civ 1234.
  36. French Statute No. 68-678 of 26 July 1968, as amended in 1980 by statute No. 80-538.
  37. Interestingly, the court was told that the scope of the statute was intended to be broad as it was originally introduced in response to what were viewed as the extravagant excesses of discovery processes in US antitrust claims.
  38. Council Regulation No 1206/2001.
  39. CAT Rule 55.
  40. Under which law firms receive a percentage of the damage obtained if the damage is successful. See section 47C(8) of the Draft Bill. CFAs, litigation funding arrangements and ATE insurance continue to be available.
  41. See Rule 26 of the CAT’s Draft Rules on Collective Actions.


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