Consumer Rights Bill (HC Bill 161)

(5) Enhanced consumer measures which directly benefit a private
designated enforcer or an associated undertaking include, in
particular, measures which—

(a) require a person to pay money to the enforcer or associated
5undertaking,

(b) require a person to participate in a scheme which is designed
to recommend persons supplying or seeking to supply goods
or services to consumers and which is administered by the
the enforcer or associated undertaking, or

(c) 10would give the enforcer or associated undertaking a
commercial advantage over any of its competitors.

(6) The Secretary of State may make an order under subsection (3)
specifying an enforcer only if the Secretary of State is satisfied that to
do so is likely to—

(a) 15improve the availability to consumers of redress for
infringements to which the enforcer’s designation relates,

(b) improve the availability to consumers of information which
enables them to choose more effectively between persons
supplying or seeking to supply goods or services, or

(c) 20improve compliance with consumer law.

(7) The Secretary of State may make an order under subsection (3)
specifying an enforcer only if the functions of the enforcer under this
Part have been specified under section 24 of the Legislative and
Regulatory Reform Act 2006 (functions to which principles under
25section 21 and code of practice under section 22 apply), to the extent
that they are capable of being so specified.

(8) The power to make an order under subsection (3)—

(a) is exercisable by statutory instrument subject to annulment in
pursuance of a resolution of either House of Parliament;

(b) 30includes power to make incidental, supplementary,
consequential, transitional, transitory or saving provision.

(9) In this section “associated undertaking”, in relation to a designated
enforcer, means—

(a) a parent undertaking or subsidiary undertaking of the
35enforcer, or

(b) a subsidiary undertaking of a parent undertaking of the
enforcer,

and for this purpose “parent undertaking” and “subsidiary
undertaking” have the meanings given by section 1162 of the
40Companies Act 2006.”

9 (1) Section 220 (further proceedings) is amended as follows.

(2) After subsection (1) insert—

“(1A) This section does not apply in the case of a failure to comply with an
order or undertaking which consists only of a failure to provide
45information or documents required by the order or undertaking as
described in section 217(10D).”

(3) In subsection (2), for “In such a case the OFT” substitute “Any CPC
enforcer”.

(4) In subsection (5)—

(a) in the opening words, for “sections 215 and 217 or 218 (as the case
may be)” substitute “sections 215, 217 or 218 (as the case may be) and
219A, 219B and 219C”,

(b) 5for paragraph (c) substitute—

“(c) section 217(9), (10), (10B) and (11) must be ignored, and
section 217(10C) and (10D) must be ignored to the extent that
they relate to an undertaking under subsection (9);”,

(c) after paragraph (d) insert—

“(e) 10sections 219A, 219B and 219C must be ignored to the extent
that they relate to an undertaking under section 217(9) or
219.”

10 In section 229 (advice and information), after subsection (1) insert—

“(1A) As soon as is reasonably practicable after the commencement of
15Schedule 5 to the Consumer Rights Act 2014 (investigatory powers
etc.) the CMA must prepare and publish advice and information
with a view to—

(a) explaining the provisions of that Schedule, so far as they
relate to investigatory powers exercised for the purposes set
20out in paragraphs 13(2) and (3) and 19 of that Schedule, to
persons who are likely to be affected by them, and

(b) indicating how the CMA expects such provisions to operate.”

Section 80

SCHEDULE 8 Private actions in competition law

25Part 1 Competition Act 1998

1 The Competition Act 1998 is amended in accordance with this Part.

2 For the heading of Chapter 4 of Part 1, substitute “Appeals, proceedings
before the Tribunal and settlements relating to infringements of competition
30law”.

3 For the cross-heading preceding section 46, substitute “Appeals and
proceedings before the Tribunal”.

4 (1) For section 47A substitute—

“47A Proceedings before the Tribunal: claims for damages etc.

(1) 35A person may make a claim to which this section applies in
proceedings before the Tribunal, subject to the provisions of this Act
and Tribunal rules.

(2) This section applies to a claim of a kind specified in subsection (3) in
respect of an infringement decision or an alleged infringement of—

(a) 40the Chapter I prohibition,

(b) the Chapter II prohibition,

(c) the prohibition in Article 101(1), or

(d) the prohibition in Article 102.

(3) The claims are—

(a) a claim for damages;

(b) 5any other claim for a sum of money;

(c) in proceedings in England and Wales or Northern Ireland, a
claim for an injunction.

(4) The right to make a claim in proceedings under this section does not
affect the right to bring any other proceedings in respect of the claim.

(5) 10In this Part (except in section 49C) “infringement decision” means—

(a) a decision of the CMA that the Chapter I prohibition, the
Chapter II prohibition, the prohibition in Article 101(1) or the
prohibition in Article 102 has been infringed,

(b) a decision of the Tribunal on an appeal from a decision of the
15CMA that the Chapter I prohibition, the Chapter II
prohibition, the prohibition in Article 101(1) or the
prohibition in Article 102 has been infringed, or

(c) a decision of the Commission that the prohibition in Article
101(1) or the prohibition in Article 102 has been infringed.”

(2) 20Section 47A of the Competition Act 1998 (as substituted by sub-paragraph
(1)) applies to claims arising before the commencement of this paragraph as
it applies to claims arising after that time.

5 (1) For section 47B substitute—

“47B Collective proceedings before the Tribunal

(1) 25Subject to the provisions of this Act and Tribunal rules, proceedings
may be brought before the Tribunal combining two or more claims
to which section 47A applies (“collective proceedings”).

(2) Collective proceedings must be commenced by a person who
proposes to be the representative in those proceedings.

(3) 30The following points apply in relation to claims in collective
proceedings—

(a) it is not a requirement that all of the claims should be against
all of the defendants to the proceedings,

(b) the proceedings may combine claims which have been made
35in proceedings under section 47A and claims which have not,
and

(c) a claim which has been made in proceedings under section
47A may be continued in collective proceedings only with the
consent of the person who made that claim.

(4) 40Collective proceedings may be continued only if the Tribunal makes
a collective proceedings order.

(5) The Tribunal may make a collective proceedings order only—

(a) if it considers that the person who brought the proceedings is
a person who, if the order were made, the Tribunal could
45authorise to act as the representative in those proceedings in
accordance with subsection (8), and

(b) in respect of claims which are eligible for inclusion in
collective proceedings.

(6) Claims are eligible for inclusion in collective proceedings only if the
Tribunal considers that they raise the same, similar or related issues
5of fact or law and are suitable to be brought in collective proceedings.

(7) A collective proceedings order must include the following matters—

(a) authorisation of the person who brought the proceedings to
act as the representative in those proceedings,

(b) description of a class of persons whose claims are eligible for
10inclusion in the proceedings, and

(c) specification of the proceedings as opt-in collective
proceedings or opt-out collective proceedings (see
subsections (10) and (11)).

(8) The Tribunal may authorise a person to act as the representative in
15collective proceedings—

(a) whether or not that person is a person falling within the class
of persons described in the collective proceedings order for
those proceedings (a “class member”), but

(b) only if the Tribunal considers that it is just and reasonable for
20that person to act as a representative in those proceedings.

(9) The Tribunal may vary or revoke a collective proceedings order at
any time.

(10) “Opt-in collective proceedings” are collective proceedings which are
brought on behalf of each class member who opts in by notifying the
25representative, in a manner and by a time specified, that the claim
should be included in the collective proceedings.

(11) “Opt-out collective proceedings” are collective proceedings which
are brought on behalf of each class member except—

(a) any class member who opts out by notifying the
30representative, in a manner and by a time specified, that the
claim should not be included in the collective proceedings,
and

(b) any class member who—

(i) is not domiciled in the United Kingdom at a time
35specified, and

(ii) does not, in a manner and by a time specified, opt in
by notifying the representative that the claim should
be included in the collective proceedings.

(12) Where the Tribunal gives a judgment or makes an order in collective
40proceedings, the judgment or order is binding on all represented
persons, except as otherwise specified.

(13) The right to make a claim in collective proceedings does not affect the
right to bring any other proceedings in respect of the claim.

(14) In this section and in section 47C, “specified” means specified in a
45direction made by the Tribunal.”

(2) Section 47B of the Competition Act 1998 (as substituted by sub-paragraph
(1)) applies to claims arising before the commencement of this paragraph as
it applies to claims arising after that time.

6 After section 47B (as substituted by paragraph 5) insert—

“47C 5Collective proceedings: damages and costs

(1) The Tribunal may not award exemplary damages in collective
proceedings.

(2) The Tribunal may make an award of damages in collective
proceedings without undertaking an assessment of the amount of
10damages recoverable in respect of the claim of each represented
person.

(3) Where the Tribunal makes an award of damages in opt-out collective
proceedings, the Tribunal must make an order providing for the
damages to be paid on behalf of the represented persons to—

(a) 15the representative, or

(b) such person other than a represented person as the Tribunal
thinks fit.

(4) Where the Tribunal makes an award of damages in opt-in collective
proceedings, the Tribunal may make an order as described in
20subsection (3).

(5) Where the Tribunal makes an award of damages in opt-out collective
proceedings, any damages not claimed by the represented persons
within a specified period must be paid to the charity for the time
being prescribed by order made by the Lord Chancellor under
25section 194(8) of the Legal Services Act 2007.

(6) The Secretary of State may by order amend subsection (5).

(7) A damages-based agreement is unenforceable if it relates to opt-out
collective proceedings.

(8) In this section—

(a) 30“damages” (except in the term “exemplary damages”)
includes any sum of money which may be awarded by the
Tribunal in collective proceedings (other than costs or
expenses);

(b) “damages-based agreement” has the meaning given in
35section 58AA(3) of the Courts and Legal Services Act 1990.”

7 After section 47C (inserted by paragraph 6) insert—

“47D Proceedings under section 47A or collective proceedings: injunctions
etc.

(1) An injunction granted by the Tribunal in proceedings under section
4047A or in collective proceedings—

(a) has the same effect as an injunction granted by the High
Court, and

(b) is enforceable as if it were an injunction granted by the High
Court.

(2) In deciding whether to grant an injunction in proceedings under
section 47A or in collective proceedings, the Tribunal must—

(a) in proceedings in England and Wales, apply the principles
which the High Court would apply in deciding whether to
5grant an injunction under section 37(1) of the Senior Courts
Act 1981, and

(b) in proceedings in Northern Ireland, apply the principles that
the High Court would apply in deciding whether to grant an
injunction.

(3) 10Subsection (2) is subject to Tribunal rules which make provision of
the kind mentioned in paragraph 15A(3) of Schedule 4 to the
Enterprise Act 2002 (undertakings as to damages in relation to claims
subject to the fast-track procedure).”

8 (1) After section 47D (inserted by paragraph 7) insert—

“47E 15Limitation or prescriptive periods for proceedings under section 47A
and collective proceedings

(1) Subsection (2) applies in respect of a claim to which section 47A
applies, for the purposes of determining the limitation or
prescriptive period which would apply in respect of the claim if it
20were to be made in—

(a) proceedings under section 47A, or

(b) collective proceedings at the commencement of those
proceedings.

(2) Where this subsection applies—

(a) 25in the case of proceedings in England and Wales, the
Limitation Act 1980 applies as if the claim were an action in a
court of law;

(b) in the case of proceedings in Scotland, the Prescription and
Limitation (Scotland) Act 1973 applies as if the claim related
30to an obligation to which section 6 of that Act applies;

(c) in the case of proceedings in Northern Ireland, the Limitation
(Northern Ireland) Order 1989 applies as if the claim were an
action in a court established by law.

(3) Where a claim is made in collective proceedings at the
35commencement of those proceedings (“the section 47B claim”),
subsections (4) to (6) apply for the purpose of determining the
limitation or prescriptive period which would apply in respect of the
claim if it were subsequently to be made in proceedings under
section 47A.

(4) 40The running of the limitation or prescriptive period in respect of the
claim is suspended from the date on which the collective
proceedings are commenced.

(5) Following suspension under subsection (4), the running of the
limitation or prescriptive period in respect of the claim resumes on
45the date on which any of the following occurs—

(a) the Tribunal declines to make a collective proceedings order
in respect of the collective proceedings;

(b) the Tribunal makes a collective proceedings order in respect
of the collective proceedings, but the order does not provide
that the section 47B claim is eligible for inclusion in the
proceedings;

(c) 5the Tribunal rejects the section 47B claim;

(d) in the case of opt-in collective proceedings, the period within
which a person may choose to have the section 47B claim
included in the proceedings expires without the person
having done so;

(e) 10in the case of opt-out collective proceedings—

(i) a person domiciled in the United Kingdom chooses
(within the period in which such a choice may be
made) to have the section 47B claim excluded from
the collective proceedings, or

(ii) 15the period within which a person not domiciled in the
United Kingdom may choose to have the section 47B
claim included in the collective proceedings expires
without the person having done so;

(f) the section 47B claim is withdrawn;

(g) 20the Tribunal revokes the collective proceedings order in
respect of the collective proceedings;

(h) the Tribunal varies the collective proceedings order in such a
way that the section 47B claim is no longer included in the
collective proceedings;

(i) 25the section 47B claim is settled with or without the Tribunal’s
approval;

(j) the section 47B claim is dismissed, discontinued or otherwise
disposed of without an adjudication on the merits.

(6) Where the running of the limitation or prescriptive period in respect
30of the claim resumes under subsection (5) but the period would
otherwise expire before the end of the period of six months
beginning with the date of that resumption, the period is treated as
expiring at the end of that six month period.

(7) This section has effect subject to any provision in Tribunal rules
35which defers the date on which the limitation or prescriptive period
begins in relation to claims in proceedings under section 47A or in
collective proceedings.”

(2) Section 47E of the Competition Act 1998 does not apply in relation to claims
arising before the commencement of this paragraph.

9 (1) 40Section 49 (further appeals) is amended in accordance with this paragraph.

(2) In subsection (1)—

(a) at the end of paragraph (a) insert “and”, and

(b) omit paragraph (b) and the “and” at the end of that paragraph.

(3) After subsection (1) insert—

“(1A) 45An appeal lies to the appropriate court on a point of law arising from
a decision of the Tribunal in proceedings under section 47A or in
collective proceedings—

(a) as to the award of damages or other sum (other than a
decision on costs or expenses), or

(b) as to the grant of an injunction.

(1B) An appeal lies to the appropriate court from a decision of the
5Tribunal in proceedings under section 47A or in collective
proceedings as to the amount of an award of damages or other sum
(other than the amount of costs or expenses).

(1C) An appeal under subsection (1A) arising from a decision in respect
of a stand-alone claim may include consideration of a point of law
10arising from a finding of the Tribunal as to an infringement of a
prohibition listed in section 47A(2).

(1D) In subsection (1C) “a stand-alone claim” is a claim—

(a) in respect of an alleged infringement of a prohibition listed in
section 47A(2), and

(b) 15made in proceedings under section 47A or included in
collective proceedings.”

(4) In subsection (2)(a), at the beginning insert “except as provided by
subsection (2A),”.

(5) After subsection (2) insert—

“(2A) 20An appeal from a decision of the Tribunal in respect of a claim
included in collective proceedings may be brought only by the
representative in those proceedings or by a defendant to that claim.”

10 (1) After section 49 insert—

“Settlements relating to infringements of competition law

49A 25Collective settlements: where a collective proceedings order has been
made

(1) The Tribunal may, in accordance with this section and Tribunal
rules, make an order approving the settlement of claims in collective
proceedings (a “collective settlement”) where—

(a) 30a collective proceedings order has been made in respect of the
claims, and

(b) the Tribunal has specified that the proceedings are opt-out
collective proceedings.

(2) An application for approval of a proposed collective settlement must
35be made to the Tribunal by the representative and the defendant in
the collective proceedings.

(3) The representative and the defendant must provide agreed details of
the claims to be settled by the proposed collective settlement and the
proposed terms of that settlement.

(4) 40Where there is more than one defendant in the collective
proceedings, “defendant” in subsections (2) and (3) means such of
the defendants as wish to be bound by the proposed collective
settlement.

(5) The Tribunal may make an order approving a proposed collective
settlement only if satisfied that its terms are just and reasonable.

(6) On the date on which the Tribunal approves a collective settlement—

(a) if the period within which persons may opt out of or (in the
5case of persons not domiciled in the United Kingdom) opt in
to the collective proceedings has expired, subsections (8) and
(10) apply so as to determine the persons bound by the
settlement;

(b) if that period has not yet expired, subsections (9) and (10)
10apply so as to determine the persons bound by the
settlement.

(7) If the period within which persons may opt out of the collective
proceedings expires on a different date from the period within which
persons not domiciled in the United Kingdom may opt in to the
15collective proceedings, the references in subsection (6) to the expiry
of a period are to the expiry of whichever of those periods expires
later.

(8) Where this subsection applies, a collective settlement approved by
the Tribunal is binding on all persons falling within the class of
20persons described in the collective proceedings order who—

(a) were domiciled in the United Kingdom at the time specified
for the purposes of determining domicile in relation to the
collective proceedings (see section 47B(11)(b)(i)) and did not
opt out of those proceedings, or

(b) 25opted in to the collective proceedings.

(9) Where this subsection applies, a collective settlement approved by
the Tribunal is binding on all persons falling within the class of
persons described in the collective proceedings order.

(10) But a collective settlement is not binding on a person who—

(a) 30opts out by notifying the representative, in a manner and by
a time specified, that the claim should not be included in the
collective settlement, or

(b) is not domiciled in the United Kingdom at a time specified,
and does not, in a manner and by a time specified, opt in by
35notifying the representative that the claim should be
included in the collective settlement.

(11) This section does not affect a person’s right to offer to settle opt-in
collective proceedings.

(12) In this section and in section 49B, “specified” means specified in a
40direction made by the Tribunal.”

(2) Section 49A of the Competition Act 1998 applies to claims arising before the
commencement of this paragraph as it applies to claims arising after that
time.

11 (1) After section 49A (inserted by paragraph 10) insert—

“49B Collective settlements: where a collective proceedings order has not
been made

(1) The Tribunal may, in accordance with this section and Tribunal
5rules, make an order approving the settlement of claims (a “collective
settlement”) where—

(a) a collective proceedings order has not been made in respect
of the claims, but

(b) if collective proceedings were brought, the claims could be
10made at the commencement of the proceedings (disregarding
any limitation or prescriptive period applicable to a claim in
collective proceedings).

(2) An application for approval of a proposed collective settlement must
be made to the Tribunal by—

(a) 15a person who proposes to be the settlement representative in
relation to the collective settlement, and

(b) the person who, if collective proceedings were brought in
respect of the claims, would be a defendant in those
proceedings (or, where more than one person would be a
20defendant in those proceedings, such of those persons as
wish to be bound by the proposed collective settlement).

(3) The persons applying to the Tribunal under subsection (2) must
provide agreed details of the claims to be settled by the proposed
collective settlement and the proposed terms of that settlement.

(4) 25The Tribunal may make an order approving a proposed collective
settlement (see subsection (8)) only if it first makes a collective
settlement order.

(5) The Tribunal may make a collective settlement order only—

(a) if it considers that the person described in subsection (2)(a) is
30a person who, if the order were made, the Tribunal could
authorise to act as the settlement representative in relation to
the collective settlement in accordance with subsection (7),
and

(b) in respect of claims which, if collective proceedings were
35brought, would be eligible for inclusion in the proceedings
(see section 47B(6)).

(6)
A collective settlement order must include the following matters—

(a) authorisation of the person described in subsection (2)(a) to
act as the settlement representative in relation to the
40collective settlement, and

(b) description of a class of persons whose claims fall within
subsection (5)(b).

(7) The Tribunal may authorise a person to act as the settlement
representative in relation to a collective settlement only if that
45person—

(a) is a person falling within the class of persons described in the
collective settlement order for that settlement, or