UK antitrust collective actions: Are the floodgates closing?

Helen Fairhead: Hi Richard. So, the collective proceedings regime is now, so to say, fully embedded in the UK. The past year has seen a number of new certifications and also appeals. By your count, how many certifications or successful certifications do you make it to date?

Richard Whish KC: Well, it has been remarkable, hasn’t it? I must say that there have been far more applications for CPOs than I had ever anticipated and certainly over 20 applications have been made by now and, when I last looked, I saw that nine applications had been granted. It may even be ten, I’m not sure, I haven’t double checked this morning. But, yes, a significant number have reached that stage and they move on to the next one.

Helen Fairhead: Yes, and as well as certifications, there’s also been appeals of the certification decisions. I think two recent ones that have caught some attention are the rulings of the Court of Appeal in Gutmann, which is the rail fares dispute, and McLaren, which is “roll on, roll off”. And I think they are two rather, sort of, contrasting decisions, and I was wondering what you think, if anything, they tell us about the development of the collective proceedings regime?

Richard Whish KC: Yes, yes.  Well, I mean, the first thing I would say before we talk about those two is that there have been several other Court of Appeal judgments as well. Merricks went up there. There’s been an appeal in the Trucks case. A very interesting one in Le Patourel v BT, which is on opt in/opt out classification. So, certainly, that regime is generating a lot of points of very interesting law. But, then you’re right, most recently, we’ve had Gutmann, the boundary fares case, and then McLaren. I think the Gutmann judgment of the Court of Appeal, as specifically actually Lord Justice Green, is admirable because it gives a, kind of, very rich panoramic view of this whole regime, how it works, why it’s there, what is the “Pro-Sys test” for certification. It’s a very, very useful judgment, almost reading like a textbook explanation of what it’s all about. And then we come to the more recent one in McLaren, and I think that is an interesting ruling there, because the defendants in that case were basically saying that, we’re still at a bit of a loss to understand how the harm caused by this cartel, how it’s going to be calculated. Because there’s big disputes between the parties as to the effect of this cartel on the eventual price of the car, and certification was permitted and the defendants appealed against that. And the Court of Appeal says, we uphold the certification, but we do think that there are some genuine concerns here about the methodology to be applied as this case progresses from now on, and we would like the Competition Appeal Tribunal to have a case management conference and to seriously think about some of these issues. And so, there’s a remittal to the CAT for that purpose. So, I think that’s a very interesting judgment and it’s almost as if the Court of Appeal is saying, look, there are an awful lot of these cases, we’ve got to make sure we get the procedure right.

Helen Fairhead: Yes and, interestingly, as you say, it was remitted to the CAT to reconsider the case management of the dispute on the approach to pricing. Do you think, as a result of that, that we’ll see the CAT taking a more, sort of, proactive role in terms of case management of other cases, particularly at the certification stage?

Richard Whish KC: Well, firstly, I think it would be fair to the CAT to say they’ve always been aware of the gatekeeper role (that’s the expression to be used), that it has in relation to CPOs. Only the CAT can grant a CPO. It is the guardian of the procedure and it has acknowledged that from the outset, including saying that it doesn’t just sit there as an arbiter between two litigants, it actually has a positive role of its own to play and it will intervene with suggestions and whatever, irrespective of what the parties say to it. Now, in the case of McLaren, the Court of Appeal has said, you know, sit down and think through a little bit more carefully this business of how to calculate the quantum. And then, very recently, we’ve had the judgment in Gormsen v Meta (Facebook), where, for the second time (it happened once before in Forex), but now for the second time, the CAT has said, no, we’re not willing to grant certification at this stage, because it’s a very difficult case to do with the use of data and what is the value of data in a two-sided market, etc. And the CAT says, we’re not really satisfied yet as to how this is going to be presented from a methodological point of view, so would you please go away – this is what it said to the proposed class representative – please go away, think about this further and you’ve got six months to come back with a methodology which is more persuasive to us.  So, that is manifestly the CAT taking a very proactive role in relation to this.

Helen Fairhead: Yes. So, the floodgates are not shutting, they’re just merely perhaps closing in your view?

Richard Whish KC: Well, I wouldn’t say either of those. I think, what I would say is, there are certainly more applications than I ever anticipated and, I think, I would say that the protagonists in this field generally, which include the CAT and the Court of Appeal, obviously can see that this has got to be kept within manageable boundaries, that it has to be administrable. Let’s put it this way, the CAT is certainly not going to rubber stamp CPO applications.

Helen Fairhead: No, I think that’s very much evident from the recent decisions. Thank you very much, Richard.

Richard Whish KC: OK.

Helen Fairhead: Thank you.