The rise of the CAT: UK antitrust damages cases

Mondial | Vidéo | novembre 2020 | 05:21

Helen Fairhead	Hi Richard, great to see you today. Today we are going to be talking about the rise of the Competition Appeal Tribunal as a forum for competition law damages claims in the UK. And I think it’s fair to say that we’ve seen a boom in competition litigation over recent years – the trucks litigation, interchange fees, cables, for example, even claims in relation to academic dress seem to be underway. And those claims have sort of been split between the High Court on the one hand and, perhaps increasingly so, in the CAT and are being transferred over from the High Court to the CAT. And in September we saw I think quite a large number of judges being appointed to the CAT. And so I wanted to get your take on why, or if you perceive there being a move towards the CAT and, if so, what you think the reasons are for that?
RIchard Whish QC	Well, it is very interesting. I mean, I think the headline point is just simply that there is much more litigation in competition cases, period. And that’s been very clear for many, many years now, and it seems to me there’s no major infringement decision that isn’t followed with damages claims. And, of course, some of these are enormous claims and they are international and there are certain advantages in litigating in England and Wales. So lots of litigation anyway and separately, you are right, lots of litigation in the CAT. And there are various explanations for that. One is, of course, that since 2015 it’s possible to bring a standalone action in the CAT and there have been many of those brought. Also, of course, you’ve got collective proceedings now in the CAT and the opt-in, opt-out system from 2015, and there are several of those waiting adjudication of various stages of the process. But then we also have to acknowledge that the CAT has become a formidably specialised institution now, and quite apart from its President, who is a very distinguished competition lawyer, I think you’ve got something like 30 or so chairmen, many of whom, as you’ve said there, are High Court judges themselves. And you’ve also got 23 ordinary members who are far from ordinary, they are very distinguished people who’ve been competition partners, competition economists at consultancies, leading academics in the field. So there is a lot of specialised knowledge in the CAT.
Helen Fairhead	Yeah, and particularly I think in competition claims where there’s a need for a sort of rigorous examination of the expert evidence, you can see that the fact that there are sort of industry specialists or economists on the panel might make it quite an attractive forum for litigation.
RIchard Whish QC	Well, I think in particular – I mean, we are talking about damages here – we are not talking about appeals in infringement proceedings. So we are talking damages and these, of course, are often hugely complicated cases – the pass on, the causation of damage, determining the level of quantum – and a lot of this, it is economics or economic analysis or number crunching as well, and I think having the panel members with experience of those very issues in the real world is an immense advantage for the CAT. A High Court judge does not have that kind of expertise available to him or her.
Helen Fairhead	Yes, I mean, that is a really interesting observation. And I think, you know, I don’t know if it’s related but the recent I think case management decision in the National Grid cables litigation, I found particularly interesting, which is where they’ve ordered the hot-tubbing of expert evidence or, sorry, concurrent expert evidence as you are meant to refer to it, I think. And I thought that was quite interesting. I mean, hot-tubbing’s been around for quite a while…
RIchard Whish QC	Well, yes, let me explain. I mean, hot-tubbing, it’s a slightly unfortunate expression because it sounds a bit like an Ibiza foam party which is great fun of course, but we are talking about something more exoteric than that. But the essence of hot-tubbing is that when you’ve got issues of economic analysis and measurement, how does the court get to the truth? Does it get to the truth through conventional cross-examination, no doubt sometimes very hostile where a leading QC is trying to trick the economic expert on the other side, or do you say to the economic experts: sit in Row A and we, the Tribunal, will conduct a seminar with you and we will tease out your better and your less good arguments and try to find what the truth of the answer is? I have to say that for somebody like me, a professor in a university who just looks at the system objectively from the outside, it seems to me to be an eminently sensible thing to do, and the CAT has done it.
Helen Fairhead	Thanks, that’s really interesting Richard, and I think it will be interesting to see whether the trend towards the CAT continues.
RIchard Whish QC	Indeed. OK, thank you.