Radical antitrust private enforcement regime launches in the UK: slow burner or big bang?

​A raft of new powers in the Competition Appeal Tribunal now offer innovative potential routes to compensation and redress for competition law breaches to consumers and businesses.

In brief

On 01 October 2015, the far reaching changes to the private actions for damages regime introduced by the Consumer Rights Act 2015 (CRA 2015) took effect, expanding the scope of the Competition Appeal Tribunal’s powers. The revisions introduce into its jurisdiction stand alone actions, opt out collective actions (essentially class actions), collective settlements, injunctions, and fast track procedures. Separately, cases, or parts of cases, dealing with antitrust infringements can now be transferred into the Competition Appeal Tribunal (CAT) from the High Court. The Competition and Markets Authority has also gained the right to authorise voluntary redress schemes (see our briefing note: UK voluntary redress for antitrust infringements: the scheme takes shape).

While the options for seeking redress have undoubtedly broadened, the likelihood of a big bang start to the regime was significantly reduced by a late amendment to CAT Rules concerning limitation which appears to bar a number of the claims expected to be brought in the early days of the regime. Issues that have long raised questions remain, such as who will have an incentive to bring an opt out claim given the restrictions on contingency fees, and the type of representative that is likely to be authorised (it must be “just and reasonable” for that person to be a class representative).

In detail

The long awaited - and in principle radical - overhaul of the antitrust private enforcement regime in the UK is now in force. The goal of making the CAT the principal venue for standalone and follow on actions for damages through granting it significantly enhanced powers is a laudable one.

The most anticipated change is the introduction of opt-out collective actions, which will enable a representative, such as a trade association or a consumer group, to bring an action on behalf of a class of consumers or businesses harmed by an antitrust law infringement. If the action is certified as opt-out, the ultimate outcome will bind all UK domiciled members of the class, without them taking steps to become part of the action, unless they opt out within a specified time. Non-UK domiciled members of the class can choose to opt in to the action.

Limitation

A number of claims are known to be in preparation by claimant firms, but a last minute clarification to the new CAT rules, which also came into effect on 01 October 2015, put at least some of those claims in jeopardy. Paragraph 8(2) of the CRA 2015 specifies that the new section 47E of the Competition Act 1998, which harmonises the CAT’s limitation rules with those of the High Court, will not apply to claims arising before that paragraph comes into effect (ie 01 October 2015). Rule 119 sets out - somewhat opaquely - how the limitation period will apply to claims that arose before 01 October 2015.

In essence, the old rules will continue to apply, which means that follow on claims must be brought within two years of the decision, or any appeal from the decision, being finalised, or the date on which the cause of action accrued, whichever is later. Additionally, no claims can be brought before the decision becomes final unless the CAT gives consent. The limitation rules set out in the CAT’s 2003 rules were drafted to apply to follow on claims only, and so sit uneasily within a regime that incorporates both standalone and follow on claims. For example, the provision refers to the later of two dates, but in a standalone claim, only the date on which the action accrued can apply. The lack of consultation on the drafting is therefore regrettable. A likely result of the transitional provisions is that some claims will continue to be brought in the High Court in the first instance. Another is that disputes about the meaning of “claim arose” in Rule 119(3) are highly likely.

The Damages Directive, due to be implemented throughout the EU by 27 December 2016, will require different provisions again.

Some issues with certifying a collective action

If the limitation hurdle is successfully overcome, the test of whether it is just and reasonable for a person to act as a representative must be passed, and the representative’s ability to pay the defendant’s recoverable costs must be established along with other criteria. Reportedly, law firms and funders may not entirely be excluded from representing a class, although the criteria for assessing their suitability and their ability to manage conflicts of interest will be stringently applied. Damages based awards are unenforceable in relation to opt out actions and, overall, the potential exposure to the defendant’s legal costs is likely to prove a disincentive to many class members choosing to bring an action.

There remains a question as to whether the technical possibility that any undistributed damages in an opt out action could - at the CAT’s discretion - be paid to the representative help defray costs, fees or disbursements incurred during the litigation will in fact prove sufficient incentive to trade associations or consumer bodies to bring claims.

Collective settlements

The introduction of a mechanism for the CAT to approve collective settlements is novel in the UK, but has similarities to the regime that operates in the Netherlands. Importantly, it will involve the Tribunal in assessing the reasonableness and justice of the settlement terms in an opt out proceeding. In an opt in proceeding, the CAT must additionally give consent for any settlement to be made if the deadline for class members to opt in has not yet passed.

The fast track procedure

The fast track procedure is primarily for straightforward cases brought by micro entities or small and medium sized entities (SMEs). Either the CAT or the applicant can seek to have a case assigned to the fast track. The main benefits are speed (the case should be heard within six months at a hearing that lasts no more than three days), capped costs, and the possibility of applying for an interim injunction on favourable terms. In an application for an interim injunction, for example to ensure supply, the CAT will be able either to cap the level of the cross undertaking in damages capped or waive it entirely. This may well result in a significant number of smaller entities seeking redress through this channel, although the challenges of running a competition law based case within these time frames should not be underestimated.

Conclusion

The UK litigation landscape has undoubtedly broadened with the implementation of the new antitrust private actions regime. Its immediate effect may not, however, be as powerful as originally anticipated, at least in the early days of the regime and in relation to cartel claims. Marcus Smith, a chairman of the CAT, has reportedly indicated that he expects a “slowish start” but then a “fairly dramatic increase” in collective claims being brought in the CAT subsequently. A small collective action is anticipated as a test case in the early days. In the case of abuse of dominance cases, however, there is more scope in the short term for cases to be brought, and applications to the CAT for interim injunctions are likely to become more widespread.

All in all, the new regime may not exactly be heading for a big bang. Many aspects of the new regime lend themselves to rigorous testing in preliminary litigation - for example, the operation of the transitional limitation provisions - before a significant upswing in antitrust litigation takes hold. But the framework for what is now a radical private enforcement regime is in place, and other jurisdictions are likely to be watching closely to see which mechanisms work best.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.