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12 Days of CATmas - 2024 in Review
12 Days of CATmas - 2024 in Review
19 December 2024
Series
Blogs
19 December 2024
The past twelve months have seen the UK’s competition class action regime continue to evolve at a blistering pace – almost as fast as Santa’s reindeer! As the year draws to a close, let us take a closer look at some of the key themes, and what lies on the horizon for 2025.
On the first day of Christmas the CAT gave to me….
The CAT ushered in the New Year with a jurisdiction hearing in Ennis v Apple, where the three wise panel members heard arguments as to whether the class representative could bring claims concerning sales by UK app developers from afar – including the US and Australia.
Apple argued that it could not, observing that what happened in other countries had no bearing on conditions of supply to UK consumers. Alternatively, Apple argued that the CAT should decline jurisdiction because allowing claims concerning sales that were already or could become the subject of claims in other countries risked giving rise to inconsistent rulings.
Ultimately the CAT found in favour of the class representative, finding that it had a realistic prospect of establishing that the relevant conduct was implemented and/or had an effect in the UK, and that the UK was the appropriate forum. Nevertheless, the issue of how the CAT ought to approach claims concerning sales that might lead to litigation in other countries remains a live one, with further guidance on this no doubt on many litigators’ Christmas wish lists.
On the second day of Christmas the CAT gave to me…
In Hunter v Amazon and Hammond v Amazon, the CAT resolved – in a departure from its approach in FX and Trucks – to deal with carriage as a preliminary issue prior to certification, citing efficiency considerations.
The CAT had previously indicated that being first to file did not guarantee carriage (Pollack v Alphabet). In Hunter and Hammond, it went even further, disregarding timing entirely. Where there is little to distinguish two competing applications in terms of the infringements alleged or the quality of the pleadings, the decision suggests that the quality and practicality of the proposed expert methodologies will be determinative as to who gets to proceed to the certification stage, and who gets left out in the cold.
A second carriage dispute involving claims against Amazon – this time in BIRA and Stephan – was heard in November. Judgment is currently pending but is expected to land shortly.
On the third day of Christmas the CAT gave to me…
A string of recent decisions has seen limitation once again emerge as a hot topic. Starting with the ghost of limitation past, the CAT issued a ruling in Merricks in June rejecting the suggestion that the principle of effectiveness – coupled with Mastercard’s alleged concealment of facts – required the Limitation Act to be read as permitting pre-1997 claims. The Court of Appeal (CoA) similarly issued a ruling in July rejecting suggestions that the Limitation Act had been overridden by the Competition Act and CAT Rules such that previously time-barred claims could be pursued.
Moving onto the ghost of limitation present – albeit staying with the interchange litigation – the CoA handed down a ruling this week on the status of pre- Damages Directive claims involving allegations of ongoing infringement. The appellant merchants had contended that the CJEU decisions in Volvo and Heureka meant limitation had not begun to run. The respondent card schemes countered that the Supreme Court’s decision in Lipton supported their position that such claims were time-barred. The CoA found in the card schemes’ favour – an outcome that will no doubt be welcome news to the defendants in the Stopford and MNO class actions, which involve similar issues.
And finally – looking to the future – there is an ongoing debate as to whether Rule 119 of the current CAT Rules and Rule 31 of the former CAT Rules read concurrently impose a two-year limitation period for claims accruing prior to 1 October 2015. This issue is set to be considered at the MNO class actions certification hearing in March 2025.
It should be noted that the CAT has been somewhat equivocal as to when limitation issues ought to be determined. While in the MNO class actions those issues are set to be considered at certification, in AdTech and Stopford the CAT refused to engage with submissions on limitation at the certification stage. The difference in approaches suggests that the CAT will consider potential limitation issues on a case-by-case basis.
On the fourth day of Christmas the CAT gave to me…
Permission to appeal was granted in four cases in the aftermath of PACCAR (all four appeals are currently stayed), while the Court of Appeal is also set to consider whether funders can have their gift of damages before class members start unwrapping theirs…
In the case of the former, the Supreme Court’s ruling in PACCAR saw several class representatives seek to revise their funding agreements so that they might remain on the CAT’s 'nice’ list. The most common approach was to amend the relevant clauses to link payments to a multiple of costs incurred. Often, however, additional clauses were added – for example ratchet clauses increasing the multiple due on long-running claims and clauses entitling funders to revert to taking a percentage of damages should the law change. Provisions were also commonly added stipulating that payments due under ‘multiple of costs’ clauses could not exceed the value of the funds recovered from the defendants.
Appeals concerning the legitimacy of these clauses were stayed following the previous government’s plan to introduce legislation reversing PACCAR, however the new government has indicated that it will await the outcome of the Law Commission’s review of the litigation funding market before making any changes. It is accordingly unclear whether the appeals will remain on ice or whether the stays will be lifted.
In the case of the latter, a key question hanging over litigation funders is whether they can be paid before class members receive their share of any damages award. An appeal on this is pending in iPhone Batteries. Also worth noting is the CAT’s direction in Reifa that the proposed class representative could be cross-examined on funding issues at the certification hearing. It remains to be seen whether this will become a regular feature of the certification process going forward.
On the fifth day of Christmas the CAT gave to me…
The past twelve months have seen the CAT tie a bow on three settlements in RoRo and a further settlement in Boundary Fares, with a fifth settlement in Merricks pending approval.
The December 2023 settlement in RoRo marked the first settlement under the regime, while the May settlement in Boundary Fares marked the second. In November 2024, it was announced that six further defendants in the RoRo proceedings forming part of the Wallenius Wilhelmsen Group had agreed to a settlement of £24.5 million and that two further defendants in those proceedings forming part of the K-Line Group had agreed to a settlement of £12.75 million. These settlements were approved by the CAT on 6 December, although details are yet to emerge as to whether this will be paid in chocolate coins, cash, or via some other medium.
Not long after this, Mastercard announced that it had agreed to settle Merricks for approximately £200 million – although the settlement looks to have put Mr Merricks on his funder’s naughty list. The settlement approval hearing is eagerly awaited.
On the sixth day of Christmas the CAT gave to me…
Since January, six actions have been given a festive green light to proceed, with further decisions expected in early 2025.
The decisions to grant certification in Gormsen and CICC are particularly notable, owing to both actions having been refused certification first time around. In the case of the former, the CAT criticised the revised pleading, noting the “absence of a clearly articulated and self-standing theory of harm”. Despite this, the CAT permitted the action to proceed – further demonstrating the low bar to certification.
Against this backdrop, proposed defendants are increasingly questioning whether resisting certification is worth it, or whether they would be better off channelling their resources into developing their defence arguments and supporting evidence.
On the seventh day of Christmas the CAT gave to me…
New legislation and an increasingly frosty regulatory climate in the digital sector mean increased uncertainty for technology businesses, while decking the halls with opportunities for claimant firms and funders to bring new claims…
The enactment of the Digital Markets, Competition and Consumers Act (DMCCA) in particular marks a major overhaul of the UK’s competition and consumer protection legislation, with the introduction of the ‘Strategic Market Status’ (SMS) regime empowering the CMA to impose bespoke conduct requirements on the largest tech businesses. Within the EU, the Digital Markets Act (DMA) serves similar objectives – albeit using different mechanisms.
Under the DMCCA, SMS businesses breaching the requirements imposed on them not only risk CMA enforcement action, but also the prospect of private damages claims. The CMA’s intervention powers are likely to result in more information about SMS firms’ practices entering the public domain, where it might be used by claimant law firms to bolster private actions. In the case of non-SMS firms, would-be class representatives may use the fact that certain conduct is banned under the SMS regime to support competition law claims.
Claimant law firms will similarly be keeping a close eye on any developments in the EU arising out of the DMA regime, noting the extent to which UK competition law and EU competition law have historically mirrored one another.
On the eighth day of Christmas the CAT gave to me…
As litigation before the CAT has increasingly become expert-led, 2024 could well have been Christmas every day for experts. Roughly half of the seven-week trial in Le Patourel earlier this year was dedicated to expert evidence, extending beyond the traditional competition sphere into behavioural economics and actuarial expertise. The increased emphasis on expert evidence, however, has yielded mixed reviews – with questions around the volume of expert evidence that parties are adducing, the independence of experts, and the extent to which certain matters ought to be left to parties’ legal advisers. Contrary to the relaxed approach taken in Le Patourel to significant expert evidence, the CAT in Consumers' Association v Qualcomm has sought to tightly control the amount of expert evidence, imposing page limits and dispensing with reply reports.
It will be interesting to see how the CAT’s approach to expert evidence evolves in 2025, but for now it seems to be heavily dictated by the identity of the CAT Chair gifted to the parties.
On the ninth day of Christmas the CAT gave to me…
Between them, the CMA, the Department for Transport and Ofwat have jingled their way (or sought to) into a total of 9 actions. The CMA has intervened – or signalled an intention to intervene – in Le Patourel, Kent, Coll, Gormsen, Neill and AdTech, and has stated that it will continue to intervene in cases concerning conduct under consideration by it, or which raise points of law that are directly relevant to its enforcement activities. The Department for Transport has sought to intervene in the Boundary Fares class actions and Boyle v Thameslink, while Ofwat has been permitted to intervene in the Wastewater class actions.
The Motor Finance actions are notable for their potential crossover with ongoing regulatory activity, with the FCA looking into whether it should implement a parallel redress scheme. The FCA has stated that – to the extent such a scheme is put in place – it envisages the relevant rules being confirmed by December 2025.
On the tenth day of Christmas the CAT gave to me…
The wave of competition collective actions shows no signs of cooling – with a flurry of 10 actions worth an estimated £9 billion filed in 2024.
The tech sector has continued to attract significant focus, with further actions brought against Amazon, Apple, Google, Microsoft and Valve. The majority of the new actions concern alleged abuses of dominance and all but one – the Bulk Mail action, which builds upon Ofcom’s 2018 infringement decision against Royal Mail – are standalone in nature.
It remains to be seen whether there will be a resurgence in follow-on, Chapter I / Article 101 and non-tech claims in the years ahead, but with the DMCCA coming into force shortly, we wouldn’t bet on tech being out of the frame just yet.
On the eleventh day of Christmas the CAT gave to me…
The past year heralded the first ‘Noel’ of trials under the regime – with Le Patourel v BT going to trial in January and the first trial in Boundary Fares taking place in June. Judgment in Le Patourel was handed down earlier this week, with the CAT finding – among other things – that while the prices charged by BT to class members exceeded the competitive benchmark, they bore a reasonable relation to the value that BT offered and were therefore not unfair. The judgment in Boundary Fares remains pending, with the novel nature of the claims making it more difficult to predict where the CAT will land – although as the first trial did not seek to address all of the issues in dispute, even were the class representative to secure a successful outcome it would not mark the end of the line for the defendant train operators.
Should Boundary Fares – or indeed any of the other actions with trials on the horizon – result in final judgments being entered in class representatives’ favour, the CAT will also need to address the issue of distribution of damages and the competing considerations at play. On the one hand, there is an expectation that class representatives will ensure that as much money as possible goes to affected class members. On the other, consideration will need to be given to how much funders ought to receive – should funders only receive a limited return where claims have been successful, it could make it more difficult to secure funding for future actions.
On the twelfth day of Christmas the CAT gave to me…
The past year has seen the CAT being as inventive as Santa’s workshop in experimenting with novel case management directions.
Of particular note has been the CAT’s approach to joint case management and the consolidation of issues:
Also of note is the CAT’s approach to disclosure requests going beyond regular standard or specific disclosure. Key examples include the proposal in Neill that Sony prepare an ‘information statement’ addressing certain matters in lieu of searching for documents (which was ultimately agreed between the parties with the CAT’s support) and the proposal in Coll that Google disclose ‘known adverse documents’ (which the CAT rejected, albeit only following Google agreeing to ask its witnesses if they were aware of such documents).
2025 will of course herald a new President of the CAT and perhaps a shift back to more orthodox case management. Watch this space…
From all the team at Linklaters, wishing you a wonderful festive period and Happy New Year!