The European, Middle Eastern and African Antitrust Review 2017

United Kingdom: Private Antitrust Litigation

RPC

We are currently in the midst of major legislative developments in the private antitrust litigation arena, instigated by both the UK and EU legislators. At the UK level, the Consumer Rights Act (the Act) came into force on 1 October 2015 so the new era for private actions which it potentially offers is still in its very early days. To complement the enhanced powers granted to the Competition Appeal Tribunal (CAT) under the Act, which were aimed at establishing it as the primary court for hearing claims for damages arising from breaches of competition rules, the CAT consulted on new rules for governing the procedures before it. The new CAT Rules1 and the accompanying weighty guidance2 also took effect on 1 October 2015.

In addition, following consultation at the beginning of 2016, the UK’s legislative proposal for implementing the EU Damages Directive (the Damages Directive) is expected imminently. Member states have a deadline of 27 December 2016 for implementation into national law, but the UK government has been considering the possibility of implementation slightly earlier in October 2016.

It is not anticipated that the implementation proposals will change the UK’s legislative landscape dramatically as the UK’s existing rules, in the main, compare at least as favourably to those laid down in the Damages Directive. For example, the UK’s six-year limitation period (for England, Wales and Northern Ireland), which was extended to cover claims before the CAT as well as the High Court, is more generous than the five-year period set out in the Damages Directive. However, as the consultation suggested adopting a ‘copy across’ approach for some elements of the Damages Directive, there has been concern that the new legislation might give rise to some uncertainties and, thus, potentially further litigation, in areas such as limitation, passing-on and joint and several liability. It remains to be seen whether these concerns have been duly addressed in the forthcoming legislation.

Despite all this legislative activity, the UK government has just published a consultation3 on further legislative improvements to the UK’s overall competition regime. Among the proposals are a number, some purely administrative and others substantive in nature, which specifically affect the CAT. Currently, the CAT can hear damages claims based on competition law infringements under the UK’s Competition Act 1998 and articles 101 and 102 TFEU. However, the CAT does not have jurisdiction to hear claims involving the equivalent competition law infringements under the European Economic Area Agreement. This is an anomaly that the UK government estimates could affect five to ten cases a year and which it is seeking to rectify. In addition, the CAT does not expressly have the power to make declaratory judgments at present, even in the context of an application for injunctive relief. More details of any further legislative changes are expected in the autumn of 2016.

It will take some years before anyone can gauge how successful the Damages Directive has ultimately been in achieving the European Commission’s aim of encouraging private actions across the EU. It is generally acknowledged that antitrust litigation has not developed as quickly or extensively as most would have anticipated or, indeed, as competition regulators would have hoped. In the meantime, England and Wales has proven over time to be one of the most popular jurisdictions for antitrust proceedings owing to, among other things, its favourable disclosure rules and the willingness of the English courts to assert jurisdiction, where possible. It is likely that its favourable jurisdictional status will continue.

In the meantime, there are already signs that the Act has had a positive impact. It has not taken long for claimants to choose the enhanced CAT as the venue for their antitrust proceedings. There have already been four applications for use of the new fast-track procedure, the first three of which also sought injunctive relief and stand-alone damages, which the CAT had been unable to grant prior to 1 October 2015. In a matter of weeks, the first two cases had settled, thereby bringing a swift resolution for the parties. According to the UK government, the enhanced role of the CAT ‘is already showing signs of improving access to redress for consumers and businesses’.3

Consumer Rights Act 2015

The principle that victims of anticompetitive conduct are entitled to compensation for the harm which they have suffered is well established in law.4 In addition, private enforcement of competition law has been widely seen as having an important, complementary role to that of public enforcement by the regulators. Nevertheless, although the level of private antitrust litigation has increased in recent years, this has not been on the scale which had been eagerly anticipated.

With the introduction of the Act, together with the CAT’s revised rules, the aim has been to establish the CAT as the principal venue for private enforcement in the UK and to make it easier for claimants to bring claims and, thereby, to convert their legal rights into effective redress. In support of encouraging both individuals and businesses in the UK to seek redress, the UK’s Competition and Markets Authority has recently published a guide on competition law redress.5

Fast-track procedure

One of the notable changes under the Act has been the introduction of the fast-track procedure, which enables the CAT to hear cases on an expedited basis. The new procedure is not available for collective proceedings.6 While claimants can apply to the CAT for use of the fast-track procedure in relation to the most straightforward antitrust claims,7 the CAT also has the power to decide to use this fast-track procedure on its own initiative.

As mentioned above, claimants have already availed themselves of this new procedure in four applications before the CAT. The first two applications were settled shortly after the notice of claim was published. In NCRQ Ltd v Institution of Occupational Safety & Health,8 the CAT received its first application on 17 December 2015 from a claimant seeking fast-track treatment of its claim for stand-alone damages and an interim injunction. The injunction hearing was listed for 12 January 2016, but the parties settled in the interim with the defendant agreeing to grant accreditation to the claimant’s diploma in applied health and safety for a three-year period. The consent order was made on 11 January 2016, entitling the parties to apply to the CAT in order to enforce the settlement terms. The second application for fast-track treatment followed on 5 February 2016 with a consent order being made in Shahid Latif & Mohammed Abdul Waheed v Tesco Stores Limited on 17 March 2106, four days before the first case management conference was scheduled to take place.9

At present, the third fast-track application,10 which was filed by Socrates Training on 4 April 2016 and designated to fast-track on 16 May 2016, is listed for a four-day hearing in early November 2016. The CAT has limited the number of witnesses of fact and has allowed one economic expert witness for each party to opine on market definition and the issue of dominance. The CAT has split the proceedings so that liability can be dealt with first (but with the need still to demonstrate the effect on the business) and then the quantification of damages. The CAT has acknowledged in the first case management conference that it can remove the case from fast-track at a later stage, if appropriate, in the event that clarification of the issues and the evidence gathering cannot be achieved within the proposed fast-track timescale.

Unlike the first three fast-track applications, the most recent case of Breasley Pillows Limited and others v Vita Cellular Foams (UK) Limited and another11 involves a follow-on damages claim against addressees of a European Commission infringement decision. No decision about fast-track designation has been taken as yet.

Given that there has only been one claim designated to the fast-track procedure so far, one has to look at the CAT Rules for guidance as to what might qualify for consideration under the fast-track.12 Essentially, the CAT has discretion to consider any matters it considers relevant before allocating cases to the fast-track. As indicated in the Socrates Training case, the CAT is not averse to this procedure, even in circumstances where the action for damages is on a stand-alone basis and where there is a need for expert witnesses. The CAT appeared mindful of the need for procedural fairness and for balancing the parties’ respective needs, when confirming that it could review, at the next scheduled case management conference, whether fast-track remained appropriate. Under the CAT Rules,13 the CAT will consider in particular:

  • whether the case relates to SMEs;
  • whether the final hearing for the matter will be listed for three days or less (a slightly longer hearing will not rule out a fast-track procedure as per Socrates Training above);
  • the presence of complex and novel issues;
  • any counterclaims;
  • the number of witnesses and experts (in the Socrates Training case, the CAT was keen to limited the number of witnesses of fact and expert witnesses);
  • the scale and nature of documentary evidence;
  • the extent of disclosure; and
  • the nature of the remedy sought, including the level of any damages.

It is also worth noting that Rule 68(5) of the CAT Rules empowers the CAT to grant interim injunctions in fast-track cases without requiring the applicant to provide an undertaking in damages. In non-fast-track cases, such an undertaking would normally be a prerequisite for granting an interim injunction. From a claimant perspective, this possibility is clearly extremely attractive, but defendants may well query how this possibility could ever be justified. As the first two cases for injunctive relief have settled, we will have to wait for insight into how the CAT approaches the task of evaluating the strength of a claimant’s case, the likely loss for a defendant if ultimately the injunction should not have been granted and the financial resources of (or available to) the claimant, when deciding whether to waive the need for a damages undertaking.

Stand-alone claims

Probably the most significant change brought about by the Act was 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).14 Despite the starting point always being that private actions for breaches of competition law 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), the CAT historically had no jurisdiction to hear stand-alone claims, despite being an expert competition tribunal. This was an unwarranted anomaly which had meant that would-be claimants for stand-alone damages claims previously had no choice of forum and could only bring proceedings in the High Court.

It is interesting to note that the first three fast-track applications before the CAT also sought damages on a stand-alone basis. These are likely to be the first of many such claims, but many may follow the fate of the first two claims and be settled before the CAT hears the substantive issues.

Injunctive relief

In order to give the CAT full standing in dealing with stand-alone damages actions, its enhanced powers included the ability to grant injunctive relief, both on an interim and final basis. Prior to the Act, the CAT had the power to award damages, but where injunctive relief was sought the only avenue open to claimants again had been to pursue this in the High Court. Inevitably, this further anomaly also served to curtail the popularity of the CAT in the context of private actions.

Since the Act placed the CAT on a more even footing with the High Court,15 there have been the three applications for injunctions (two of which were settled swiftly and the third has yet to proceed to the actual hearing) and it is likely that such applications will also steadily increase in frequency over time.

It is also worth noting that the CAT’s power to award interim relief is not limited to injunctions. Rather, it may make any interim order that it has the power to grant as a final remedy.16

Collective proceedings

One of the other most significant reforms introduced in the UK was the decision to create a limited opt-out collective actions regime under the new section 47B of the Competition Act 1998. It goes further than the EU’s non-binding recommendation on collective redress17 which expressed a preference for an opt-in model. This opt-out reform is designed to equip citizens with more effective means of redress, although it will undoubtedly give rise to several issues.

Mechanisms have existed in England by which opt-in group actions can be brought,18 but in practice they are seldom 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).

Collective proceedings can now be brought before the CAT19 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)20 in both stand-alone and follow-on claims.

Some concerns have persisted that this development could lead to the emergence of a US-style litigation culture, but there has not been any sign of this as yet. The government, mindful of these concerns, installed a sturdy set of safeguards aimed at protecting against any inadvertent consequences, but these have yet to be tested.

Certification

Primarily, the CAT now has the power to assess the suitability of the proposed class representatives and to certify – by way of a collective proceedings order – that claims are suitable to be brought as collective proceedings.21 In particular, the CAT has to be satisfied that the claims raise ‘common issues’,22 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.

Class representatives

The Act 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 nominated representative if the CAT considers that it is ‘just and reasonable’ for that person to act as the representative.23 The CAT retains a wide margin of discretion in determining this question, taking into account, inter alia, whether that person would fairly and adequately act in the interests of the class members, potential conflicts of interest between the class and the representative, and whether the purported representative is the most suitable to represent the class (where there is more than one available option). The CAT will also consider whether the proposed representative will be able to pay the defendant’s recoverable costs, if ordered to do so, and in the case of interim injunctions, whether the representative could satisfy any requirement for an undertaking in damages.24

Costs

The use of damages-based agreements in opt-out collective actions is prohibited.25 As noted above, in the case of unsuccessful collective actions, liability for costs will rest with the representative, rather than the individuals who form part of the class.26

As regards damages for opt-out collective actions, the Act sets out that the CAT should be able to calculate damages on an aggregate group basis, as opposed to the alternate position for opt-in proceedings, under which defendants are 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.

The issues surrounding collective proceedings are littered with uncertainty, especially in light of the UK’s relative inexperience in dealing with such matters. Many of the key issues relating to, for example, the identification of classes and sub-classes, commonality and pass-on will be subject to significant debate and challenge. Almost inevitably, this uncertainty will give rise to litigation.

However, 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 rules on collective actions are intended to bridge that gap.

Settlement

In practice, the overwhelming majority of private claims settle, even if some do so very late in the day.27 Settlements can take the form of financial settlement, commercial settlement or a combination of both. The Act provides for an opt-out collective settlement regime, under which the CAT has the power to ratify collective settlements, under a collective settlement order (CSO), provided it is satisfied that the settlement is just and reasonable. A settlement may also be made in the absence of a CSO. The CAT may specify how the settlement is to be distributed. Individuals within the class may opt in or opt out of the settlement.

Extending the imitation period

The limitation period for bringing a claim in the CAT is also extended by the Act in order to harmonise procedures with the High Court, where the limitation period for bringing a civil claim based on English law is six years from the date on which the cause of action accrued.28 In practice, this means that a six-year limitation period will apply to claims brought in the CAT in England and Wales, and Northern Ireland,29 whether stand-alone or follow-on.30 However, under Rule 119, proceedings commenced in the CAT before
1 October 2015 or proceedings relating to a claim under section 47A of the Competition Act 1998 that arose before 1 October 2015 are subject to the old CAT Rules with their two-year limitation period. Issues relating to limitation are discussed further below.

The transfer of claims from the High Court to the CAT

The CAT has had the ability to transfer proceedings to the High Court, where it has considered that it would be the more appropriate forum for dealing with the claim. However, we are now seeing claims (or parts of claims) being transferred from the High Court to the CAT. In Sainsbury’s v MasterCard,31 the High Court judge, on his own initiative, but with the parties’ consent, transferred proceedings to the CAT. He considered it the appropriate course of action given: the specialist skills of the expert CAT panel; the logistical and legal support available to the CAT which was also considered advantageous in lengthy and complex cases such as the one before him; the fact that the same timescale could be maintained; and the judge could remain as the Chairman of the Panel. One of the claimants’ concerns was the impact of the Rule 119 limitation period (discussed above) on the transfer of the proceedings. The judge made it clear that the transfer did not alter, limit or exclude any element of the claimant’s claim as constituted in the High Court.

In Unwired Planet International Ltd v Huawei Technologies Co Ltd,32 the High Court judge dismissed, albeit with some regret, an application to transfer the question of infringement of competition law to the CAT. He acknowledged the CAT’s distinguishing features in terms of its expert panel and support staff. However, it was not considered practical in the circumstances to split the competition law issues from the contractual ones arising from the licensing arrangements.

In addition, there are various parallel proceedings which have been brought in the CAT and the High Court. In Deutsche Bahn v MasterCard,33 a recent application to have the proceedings before the CAT struck out as an abuse of process was unsuccessful (the actual judgment is currently awaited). It had been argued that, as there were ongoing proceedings in the High Court in relation to the same claim and these had been commenced back in December 2012, the proceedings before the CAT were an abuse of process. Similarly, there are parallel proceedings in relation to Peugeot Citroen Automobiles UK Ltd v Pilkington Group Ltd.34 These parallel proceedings have arisen in part due to issues surrounding limitation periods (discussed further below).

Establishing jurisdiction in the English courts

Establishing jurisdiction is always fundamental to antitrust proceedings. Potential claimants need to consider carefully the appropriate jurisdiction in which to bring their claims and the usual course of events is that claimants seek to bring claims in a jurisdiction which is seen to be claimant-friendly (a process often referred to as ‘forum shopping’).

As noted above, England and Wales has traditionally been a popular forum for claimants, but with the impending impact of the Damages Directive, the challenge now is to maintain its standing going forward. Given the experience and willingness of the English courts to take jurisdiction, and in light of the efforts to expand the jurisdiction of the CAT, it does seems likely that England and Wales will continue to be a popular jurisdiction even after the implementation of the Damages Directive across EU member states.

To establish jurisdiction against EU-domiciled defendants, claimants must turn to the provisions of the recast Brussels Regulation.35 Under article 4(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 8(1), which contains the rules relating to ‘anchor defendants’.36 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.37

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,38 Cooper Tire39 and Toshiba Carrier,40 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.

In the High Court proceedings brought by DSG Retail against MasterCard,41 MasterCard’s application to have claims against an English defendant struck out was unsuccessful. It had argued that these claims had only been brought in order to benefit from English law and its limitation rules and that the defendant had not been an addressee of the European Commission’s infringement decision and had not participated in the infringement. The High Court considered that the question of liability by this particular undertaking was an issue to be resolved at trial, given that it was arguable that it was liable by virtue of being part of the same undertaking as the other MasterCard defendants.

It is also worth noting the decision of the CAT in DSG Retail Ltd.42 Here, following the European Commission’s infringement decision against MasterCard for fixing the minimum level of multilateral interchange fees (MIFs), the claimants sought permission from the CAT to serve out of the jurisdiction in relation to a claim for damages. Two of the three defendants were domiciled in the US, meaning that permission was required from the CAT before the claim could be served. The CAT chose to apply the same principles for service out of the jurisdiction as are applicable in the High Court and consequently permitted the claimants to serve out of the jurisdiction. The CAT also granted permission to EU claimants to serve out of the jurisdiction in Peugeot S.A. v NSK Ltd43 in connection with its damages claim following on from the European Commission’s bearings infringement decision, to which the defendants were addressees. The CAT noted that it would be costly and burdensome for the claimants to have to issue separate proceedings in Japan against some of the defendants.

In Iiyama Benelux BV & others v Schott AG & Others,44 the High Court recently struck out the damages claim against various cathode-ray tube manufacturers and manufacturers of glass for such tubes. In their pleadings, the claimants relied on the European Commission’s infringement decisions in relation to cathode-ray tubes and the glass used for these tubes. However, the High Court concluded that the claimants had not purchased any of the products from the cartelists in the EU. The relevant glass products had been sold in Asia for the manufacture of cathode-ray tubes again in Asia. These tubes were then sold to third-party monitor manufacturers based in Asia and some of these monitors were then sold to Iiyama, a Japanese corporation, which then sold the products to group companies based in the EU, so there was no jurisdictional nexus with the EU.

In other proceedings brought by Iiyama against LG Display and Samsung Electronics,45 it is seeking damages arising from the LCD cartel. Similar arguments about jurisdiction have recently been heard in the High Court. Judgment is awaited.

Outside the Brussels Regulation, claimants have also sought to establish jurisdiction by reference to contractual jurisdiction clauses. Following the Court of Appeal decision in Ryanair Limited v Esso Italiana SRL,46 a contractual jurisdiction clause cannot be relied upon if it does not specifically envisage the bringing of a claim on the basis of a breach of article 101 TFEU.

Limitation

Limitation always has been, and will continue to be, critical in any claim. This is particularly so in cases which flow from decisions involving multiple parties, perhaps spanning several jurisdictions and perhaps involving secretive cartel arrangements, previously unknown to potential claimants.

As noted above, the limitation period in the CAT has been harmonised with that in the High Court (ie, six years from the date on which the cause of action accrued, subject to certain exceptions).

For its part, the Damages Directive establishes that member states must have in place a minimum limitation period of five years.47 This will require several member states to amend their respective national law in order to comply with this requirement (in Spain, for example, the limitation period is currently one year from the date the claimant becomes aware of the damage). In the UK, the six-year period is already more favourable than that laid down by the Damages Directive. However, as mentioned above, the UK is in the process of drafting legislation to fully implement the Damages Directive. The UK legislation will need to provide for the interruption of limitation periods, as required by article 10 of the Damages Directive.

Despite some harmonisation, it does not necessarily follow that limitation will become clear-cut and disputes on this issue are likely to continue.

The 2014 Arcadia case48 is an example of the sort of limitation-related disputes that have been, and are likely to continue to be, thrown up. In 2013, 12 UK retailers brought claims against VISA for damages, arising from an alleged infringement in relation to MIFs, commencing in 1977 and continuing to the date of the claim. In March 2014, the defendants applied to strike out any parts of those claims that were based upon alleged infringements dating back more than six years before the claims were brought, on the basis of limitation.

The court considered when the claimants had sufficient knowledge such that they should have been in a position to bring a claim. A distinction was drawn between facts which are crucial in pleading a cause of action, and facts which were non-essential in bringing a claim, but may enhance or strengthen the claim. In this instance, the court found that the claimants had ‘sufficient facts’ to be able to plead a cause of action and, as such, moved to strike out the claims that related to infringements that fell outside of the relevant six-year period (ie, the claim was limited to the six-year period ending on the day proceedings were issued). The High Court ruling striking out part of the claims as being outside the limitation period was subsequently upheld by the Court of Appeal.49

The result is that the six-year limitation period begins to run when there is enough information in the public domain for the claimant to have sufficient knowledge to be able to bring a claim – not simply when it has all the facts required to strengthen or enhance its claim.

Interestingly, the claimants attempted to rely on the forthcoming Damages Directive in order to support their claim. The claimants sought to argue that the court should have reference to the Damages Directive in determining the issue at hand, on the basis that it would be unsatisfactory to strike out the claim only for it to be resurrected when the Damages Directive comes into force. But, in dismissing this point, the court referred to the temporal application provisions contained in article 22 (ie, that national measures implementing the Damages Directive should not apply retroactively).

The parallel proceedings in the High Court and CAT discussed above have also raised various limitation issues. The main reason for Deutsche Bahn and Peugeot Citroen to bring additional proceedings before the CAT was to protect their position should the High Court determine that their claims are in any way time-limited. As the proceedings are governed by the old CAT Rules, they are not subject to the new six-year limitation period as also applies in the High Court. Under the old rules, a damages claim has to be brought within two years of the date of when the infringement decision becomes final, but the claim can cover the whole infringement period as set out in the European Commission’s infringement decisions. These two cases were brought together for a hearing before the CAT in relation to whether, in circumstances where the applicable law is a foreign law, the limitation rules of the relevant foreign law apply pursuant to the Foreign Limitations Periods Act 1984. Judgment is currently awaited.

Costs and funding

Inevitably, the high costs associated with bringing proceedings are often the main reason why claimants choose not to pursue their claims, a problem exacerbated by the general principle in the English courts that costs follow the event (ie, the loser pays). The court does, however, retain discretion in making costs awards and, in practice, the winning party will rarely (if ever) recover 100 per cent of its costs.

The starting position is different for cases before the CAT. Here, unlike in the High Court, there is no general principle that costs follow the event. Rather, the CAT has discretion to make any order it sees fit in relation to costs.

Regardless of any changes (procedural or otherwise) made under the Act or the Damages Directive, the costs of bringing a private antitrust claim are likely to remain considerable. While the costs of bringing a follow-on claim might be lower given the ability of the claimant to rely upon the existing infringement decision, those bringing stand-alone actions will usually face significantly higher costs given the added burden on the claimant of establishing an actual competition law infringement. In either case, however, the potential claimant must carry out a careful balancing act in evaluating whether the costs of bringing the claim are proportionate to the damages sought.

Disclosure

Another 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 judgment50 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 Grid51 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 given the introduction of the Damages Directive.

In light of the risk of differing approaches across jurisdictions, the Damages 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, namely leniency statements and settlement submissions. These 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 which 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 pre-existing documents that were in existence prior to the investigation. Subject to the bounds of proportionality, such documents will be disclosable.

In the Emerald case,52 which concerned litigation following the European Commission’s 2010 infringement decision in Air Cargo,53 the High Court ruled that an unredacted version of the European Commission’s decision, which did not contain any legally privileged information or information relating to leniency applications, should be disclosed into a confidentiality ring. It did so on the basis that the confidentiality ring would be sufficient to protect the addressees in the decision, even if their names were not redacted. The judge further held that the claimants could not use the decision to bring any further claims against the defendants.

However, this disclosure decision was overturned by the Court of Appeal.54 The Court of Appeal referred to the case law of the European Court and to Pergan, in particular, and the absolute protection afforded by the presumption of innocence which precludes the publication of any formal infringement finding (or even allusions to infringements), which cannot be challenged before the European Courts. Thus, the judge had not been entitled to amend the Pergan safeguards by allowing disclosure of an unredacted version of the European Commission’s decision into a confidentiality ring. The Supreme Court has subsequently denied permission to appeal this judgment.

Conclusion

The recent and ongoing legislative reforms are designed to stimulate private antitrust litigation, whether on a stand-alone or follow-on basis. It is too early to say whether these reforms successfully provide the impetus needed for private actions to take off to the extent long hoped for.

While the UK has traditionally been a popular jurisdiction, it now faces the challenge of maintaining that position following the introduction of the Damages Directive, the purpose of which is to encourage private actions across all EU member states by harmonising procedural rules and removing traditional obstacles to the emergence of such claims. In the short term, it seems unlikely that its position will be challenged while member states continue to grapple with the implementation of the Directive.

The reforms under the Act, alongside the welcome extension of the powers of the CAT, certainly suggest that the UK is determined to maintain its position as the pre-eminent forum for private antitrust litigation. The introduction of an opt-out collective action mechanism, in particular, is a landmark change. Exactly how this plays out in practice will turn to a large extent on the approach of the CAT to issues such as certification and approving class representatives. Although the changes have been in place for less than a year, there are already early indications that they are having a positive impact.

The authors would like to acknowledge Melanie Musgrave and Chris Ross for their assistance in drafting this article.

Notes

  1. The Competition Appeal Tribunal Rules 2015 S.I. 2015 No. 1648.
  2. Competition Appeal Tribunal Guide to Proceedings 2015.
  3. Options to refine the UK competition regime: a consultation BIS/16/253.
  4. Paragraph 107 of 3 above.
  5. 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 on 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.
  6. CMA55 May 2016 Competition law redress: A guide to taking action, for breaches of competition law.
  7. CAT Rules, rule 74(3)(d).
  8. CAT Rules, rule 58(1).
  9. CAT Case No. 1242/5/7/15.
  10. Shahid Latif & Mohammed Abdul Waheed v Tesco Stores Limited CAT Case No. 1247/5/7/16.
  11. Socrates Training Limited v The Law Society of England and Wales CAT Case No. 1249/5/7/16.
  12. Breasley Pillows Limited and others v Vita Cellular Foams (UK) Limited and another CAT Case No. 1250/5/7/16.
  13. CAT Rules, rule 58(3).
  14. CAT Rules, rule 58(3).
  15. Schedule 8, paragraph 4 of the Act – section 47A of the Competition Act 1998.
  16. Schedule 8 of the Act, paragraphs 7 and 4(3)(2). Injunctions will be granted by reference to the same criteria under which injunctions can be obtained from the High Court.
  17. CAT Rules, rule 24.
  18. Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the member states concerning violations of rights granted under Union Law, OJ L201/60.
  19. 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.
  20. The CAT Rules seek to deal in detail with many issues in respect of collective proceedings. See CAT Rules, rules 73–93.
  21. Claimants who are not domiciled in the UK will be required to opt in.
  22. 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.
  23. See Rule 79 of the CAT Rules and section 47B(6) of the amended Competition Act (as contained in of Schedule 8 of the Act), which states that collective proceedings must ‘raise the same, similar or related issues of fact and law’.
  24. Schedule 8 of the Act, paragraph 5(8)(b).
  25. CAT Rules, rule 78.
  26. Under a DBA, the law firm receives a percentage of the damages obtained if the claimant is successful. See section 47C(8) of the Act. Conditional fee arrangements (CFAs), under which fees are determined by reference to an hourly rate, together with an uplift should the claim be successful, are still permitted under the Act, as are litigation funding arrangements and ATE insurance. However, should the damages awarded to an individual claimant in collective proceedings be low, they may be altogether extinguished by the success fee, meaning that a CFA will not always be an attractive funding option to individuals in group proceedings.
  27. CAT Rules, rule 98.
  28. For example, in National Grid Electricity Transmission Plc v ABB Ltd [2013] EWHC 822 (Ch), which was listed for trial in July 2014, settlement was achieved just a few days beforehand.
  29. 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).
  30. The period in Scotland will be five years.
  31. 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.
  32. [2015] EWHC 3472 (Ch).
  33. [2016] EWHC 958 (Pat).
  34. CAT Case No. 1240/5/7/15.
  35. CAT Case No. 1244/5/7/15.
  36. Council Regulation (EU) 1215/2012. This was adopted by the European Council in December 2012 and came into force on 10 January 2015.
  37. See also article 7(1) in relation to contract claims and performance, article 7(2) in relation to tort claims, article 25 relating to jurisdiction agreements, article 26 in relation to submission to jurisdiction and article 29 regarding related actions.
  38. In this regard it is worth noting that the Damages Directive confirms the principle of joint and several liability among cartelists for the damage caused by the cartel, subject to protections for leniency applicants.
  39. Provimi v Aventis [2003] EWHC 961.
  40. Cooper Tire & Rubber Co Europe Ltd and others v Dow Deutschland Inc and others [2010] EWCA Civ 864.
  41. Toshiba Carrier UK Ltd and others v KME Yorkshire Ltd and others [2012] EWCA Civ 169.
  42. DSG Retail Limited and others v Mastercard Incorporated and others [2015] EWHC 3673 (Ch).
  43. DSG Retail Limited and Dixons Retail Limited v MasterCard Incorporated and others [2015] CAT 7.
  44. CAT Case No. 1248/5/7/16
  45. HC-2014-001979.
  46. Iiyama (UK) Ltd & others v Samsung Electronics Co Ltd & others HC-2014-001980.
  47. [2013] EWCA Civ 1450.
  48. This period will not commence until the infringement has ceased, and the claimant knows, or could reasonably be expected to know of the behaviour and the fact that it constitutes an infringement of competition law, that the infringement has caused harm to it, and the identity of the infringer. Article 10(4) of the Damages Directive also requires that limitation will be suspended where a competition authority launches an investigation or proceedings relating to the infringement to which the damages action relates. Such a suspension must remain in place for at least one year following a decision or the termination of any such proceedings.
  49. Arcadia Group Brands Ltd and others v VISA [2014] EWHC 3561 (Comm).
  50. Arcadia Group Brands Ltd and others v Visa Inc and others A3/2014/3813.
  51. Case C-360/09 Pfleiderer AG v Bundeskartellamt.
  52. National Grid Electricity Transmission Plc v ABB & Others [2012] EWHC 869 (Ch).
  53. Emerald Supplies Ltd & Ors v British Airways & Ors [2014] EWHC 3513 (Ch).
  54. Case AT.39258 – Airfreight.
  55. [2015] EWCA Civ 1024.

Previous Chapter:United Kingdom: Competition and Markets Authority

Next Chapter:United Kingdom: Cartel Enforcement

Interested in becoming a GCR author? Please contact our co-publishing manager.

Get in touch