Consumer Rights Bill (HC Bill 180)

Consumer Rights BillPage 110

(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) Where there is more than one defendant in the collective
5proceedings, “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) 10On the date on which the Tribunal approves a collective settlement—

(a) if the period within which persons may opt out of or (in the
case 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
15settlement;

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

(7) If the period within which persons may opt out of the collective
20proceedings expires on a different date from the period within which
persons not domiciled in the United Kingdom may opt in to the
collective proceedings, the references in subsection (6) to the expiry
of a period are to the expiry of whichever of those periods expires
later.

(8) 25Where 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 who—

(a) were domiciled in the United Kingdom at the time specified
for the purposes of determining domicile in relation to the
30collective proceedings (see section 47B(11)(b)(i)) and did not
opt out of those proceedings, or

(b) opted 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
35persons described in the collective proceedings order.

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

(a) opts 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) 40is not domiciled in the United Kingdom at a time specified,
and 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 settlement.

(11) This section does not affect a person’s right to offer to settle opt-in
45collective proceedings.

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

Consumer Rights BillPage 111

(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 5Collective settlements: where a collective proceedings order has not
been made

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

(a) 10a collective proceedings order has not been made in respect
of the claims, but

(b) if collective proceedings were brought, the claims could be
made at the commencement of the proceedings (disregarding
any limitation or prescriptive period applicable to a claim in
15collective proceedings).

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

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

(b) 20the 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
defendant in those proceedings, such of those persons as
wish to be bound by the proposed collective settlement).

(3) 25The 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) The Tribunal may make an order approving a proposed collective
settlement (see subsection (8)) only if it first makes a collective
30settlement order.

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

(a) if it considers that the person described in subsection (2)(a) is
a person who, if the order were made, the Tribunal could
authorise to act as the settlement representative in relation to
35the collective settlement in accordance with subsection (7),
and

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

(6)
40A 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
collective settlement, and

(b) description of a class of persons whose claims fall within
45subsection (5)(b).

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

Consumer Rights BillPage 112

(a) whether or not that person is a person falling within the class
of persons described in the collective settlement order for that
settlement, but

(b) only if the Tribunal considers that it is just and reasonable for
5that person to act as the settlement representative in relation
to that settlement.

(8) Where the Tribunal has made a collective settlement order, it may
make an order approving a proposed collective settlement only if
satisfied that its terms are just and reasonable.

(9) 10A collective settlement approved by the Tribunal is binding on all
persons falling within the class of persons described in the collective
settlement order.

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

(a) opts out by notifying the settlement representative, in a
15manner 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
notifying the settlement representative that the claim should
20be included in the collective settlement.

(11) In this section, “settlement representative” means a person who is
authorised by a collective settlement order to act in relation to a
collective settlement.

(2) Section 49B of the Competition Act 1998 applies to claims arising before the
25commencement of this paragraph as it applies to claims arising after that
time.

12 After section 49B (inserted by paragraph 11) insert—

49C Approval of redress schemes by the CMA

(1) A person may apply to the CMA for approval of a redress scheme.

(2) 30The CMA may consider an application before the infringement
decision to which the redress scheme relates has been made, but may
approve the scheme only—

(a) after that decision has been made, or

(b) in the case of a decision of the CMA, at the same time as that
35decision is made.

(3) In deciding whether to approve a redress scheme, the CMA may take
into account the amount or value of compensation offered under the
scheme.

(4) An approved scheme may not be varied by the CMA or the
40compensating party.

(5) The Secretary of State may make regulations relating to the approval
of redress schemes, and the regulations may in particular—

(a) make provision as to the procedure governing an application
for approval of a redress scheme, including the information
45to be provided with the application;

Consumer Rights BillPage 113

(b) provide that the CMA may approve a redress scheme only if
it has been devised according to a process specified in the
regulations;

(c) provide that the CMA may approve a redress scheme only if
5it is in a form, or contains terms, specified in the regulations
(which may include terms requiring a settlement agreement
under the scheme to be in a form, or contain terms, specified
in the regulations);

(d) provide that the CMA may approve a redress scheme only if
10(so far as the CMA can judge from facts known to it) the
scheme is intended to be administered in a manner specified
in the regulations;

(e) describe factors which the CMA may or must take into
account, or may not take into account, in deciding whether to
15approve a redress scheme.

(6) The CMA must publish guidance with regard to—

(a) applications for approval of redress schemes,

(b) the approval of redress schemes, and

(c) the enforcement of approved schemes, and in particular as to
20the criteria which the CMA intends to adopt in deciding
whether to bring proceedings under section 49E(4).

(7) Guidance under subsection (6) must be approved by the Secretary of
State before it is published.

(8) In this section and sections 49D and 49E—

  • 25“approved scheme” means a redress scheme approved by the
    CMA,

  • “compensating party” means a person offering compensation
    under an approved scheme,

  • “infringement decision” means—

    (a)

    30a 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, or

    (b)

    a decision of the Commission that the prohibition in
    35Article 101(1) or the prohibition in Article 102 has
    been infringed, and

  • “redress scheme” means a scheme under which a person offers
    compensation in consequence of an infringement decision
    made in respect of that person.

(9) 40For the purposes of this section and section 49E, “compensation”—

(a) may be monetary or non-monetary, and

(b) may be offered to persons who have not suffered a loss as a
result of the infringement decision to which the redress
scheme relates.

49D 45Redress schemes: recovery of costs

(1) The CMA may require a person making an application for approval
of a redress scheme to pay some or all of the CMA’s reasonable costs
relating to the application.

Consumer Rights BillPage 114

(2) A requirement to pay costs is imposed by giving that person written
notice specifying—

(a) the amount to be paid,

(b) how that amount has been calculated, and

(c) 5by when that amount must be paid.

(3) A person required to pay costs under this section may appeal to the
Tribunal against the amount.

(4) Where costs required to be paid under this section relate to an
approved scheme, the CMA may withdraw approval from that
10scheme if the costs have not been paid by the date specified in
accordance with subsection (2)(c).

(5) Costs required to be paid under this section are recoverable by the
CMA as a debt.

49E Enforcement of approved schemes

(1) 15A compensating party is under a duty to comply with the terms of an
approved scheme (“the duty”).

(2) The duty is owed to any person entitled to compensation under the
terms of the approved scheme.

(3) Where such a person suffers loss or damage as a result of a breach of
20the duty, the person may bring civil proceedings before the court for
damages, an injunction or interdict or any other appropriate relief or
remedy.

(4) Where the CMA considers that the compensating party is in breach
of the duty, the CMA may bring civil proceedings before the court
25for an injunction or interdict or any other appropriate relief or
remedy.

(5) Subsection (4) is without prejudice to any right that a person has to
bring proceedings under subsection (3).

(6) In any proceedings brought under subsection (3) or (4), it is a defence
30for the compensating party to show that it took all reasonable steps
to comply with the duty.

(7) Where the CMA considers that it is no longer appropriate for the
compensating party to be subject to the duty, the CMA may give
notice in writing to that party stating that it is released from the duty.

(8) 35Where a person has entered into a settlement agreement with the
compensating party, that agreement remains enforceable
notwithstanding the release of the compensating party under
subsection (7) from the duty.

(9) In this section “the court” means—

(a) 40in England and Wales, the High Court or the county court,

(b) in Northern Ireland, the High Court or a county court,

(c) in Scotland, the Court of Session or the sheriff.

13 (1) Section 58 (findings of fact by OFT) is amended in accordance with this
paragraph.

Consumer Rights BillPage 115

(2) In subsection (1), after “the court” insert “or the Tribunal”.

(3) In subsection (2)—

(a) in the definition of “Part I proceedings”, before paragraph (a)
insert—

(za) 5in respect of an infringement decision;;

(b) in the definition of “relevant party”, in paragraphs (a) and (b), for “is
alleged to have infringed the prohibition” substitute “has been found
to have infringed the prohibition or is alleged to have infringed the
prohibition (as the case may be)”.

(4) 10In subsection (3)—

(a) after “Rules of court” insert “or Tribunal rules”, and

(b) after “the court” insert “or the Tribunal”.

(5) After subsection (3) insert—

(4) In this section “the court” means—

(a) 15in England and Wales or Northern Ireland, the High Court,

(b) in Scotland, the Court of Session or the sheriff.

14 (1) For section 58A substitute—

58A Infringement decisions

(1) This section applies to a claim in respect of an infringement decision
20which is brought in proceedings—

(a) before the court, or

(b) before the Tribunal under section 47A or 47B.

(2) The court or the Tribunal is bound by the infringement decision once
it has become final.

(3) 25An infringement decision specified in section 47A(5)(a) or (b)
becomes final—

(a) when the time for appealing against that decision expires
without an appeal having been brought;

(b) where the decision is specified in section 47A(5)(a) and an
30appeal has been brought against the decision under section
46 or 47, when that appeal—

(i) has been withdrawn, dismissed or otherwise
discontinued, or

(ii) has confirmed the infringement decision and the time
35for making any further appeal against that
confirmatory decision expires without a further
appeal having been brought;

(c) where an appeal has been brought in relation to the decision
under section 49, when that appeal—

(i) 40in the case of an appeal against the infringement
decision or against a decision which confirmed the
infringement decision, has been withdrawn,
dismissed or otherwise discontinued, or

(ii) has confirmed the infringement decision and the time
45for making any further appeal to the Supreme Court

Consumer Rights BillPage 116

against that confirmatory decision expires without a
further appeal having been brought; or

(d) where an appeal has been brought to the Supreme Court in
relation to the decision, when that appeal—

(i) 5in the case of an appeal against a decision which
confirmed the infringement decision, has been
withdrawn, dismissed or otherwise discontinued, or

(ii) has confirmed the infringement decision.

(4) An infringement decision specified in section 47A(5)(c) becomes
10final—

(a) when the time for appealing against that decision in the
European Court expires without an appeal having been
brought; or

(b) where such an appeal has been brought against the decision,
15when that appeal—

(i) has been withdrawn, dismissed or otherwise
discontinued, or

(ii) has confirmed the infringement decision.

(5) This section applies to the extent that the court or the Tribunal would
20not otherwise be bound by the infringement decision in question.

(6) In this section “the court” means—

(a) in England and Wales or Northern Ireland, the High Court,

(b) in Scotland, the Court of Session or the sheriff.

(2) Section 58A of the Competition Act 1998 (as substituted by sub-paragraph
25(1)) does not apply in relation to decisions made before the commencement
of this paragraph.

15 (1) Section 59 (interpretation of Part 1) is amended in accordance with this
paragraph.

(2) In subsection (1), at the appropriate places insert—

  • 30“class member” has the meaning given in section 47B(8)(a);”;

  • ““collective proceedings” has the meaning given in section
    47B(1);”;

  • ““collective proceedings order” means an order made by the
    Tribunal authorising the continuance of collective
    35proceedings;”;

  • ““infringement decision”, except in section 49C, has the
    meaning given in section 47A(5);”;

  • ““injunction” includes an interim injunction;”;

  • ““opt-in collective proceedings” has the meaning given in
    40section 47B(10);”;

  • ““opt-out collective proceedings” has the meaning given in
    section 47B(11);”;

  • ““representative” means a person who is authorised by a
    collective proceedings order to bring collective
    45proceedings;”;

  • ““represented person” means a class member who—

    (a)

    has opted in to opt-in collective proceedings,

    Consumer Rights BillPage 117

    (b)

    was domiciled in the United Kingdom at the time
    specified for the purposes of determining domicile
    (see section 47B(11)(b)(i)) and has not opted out of
    opt-out collective proceedings, or

    (c)

    5has opted in to opt-out collective proceedings;.

(3) In subsection (1), in the definition of “the court”, before “58” insert “49E,”.

(4) After subsection (1) insert—

(1A) In this Part, in respect of proceedings in Scotland, “defendant” is to
be read as “defender”.

(1B) 10Sections 41, 42, 45 and 46 of the Civil Jurisdiction and Judgments Act
1982 apply for the purpose of determining whether a person is
regarded as “domiciled in the United Kingdom” for the purposes of
this Part.

16 In section 71 (regulations, orders and rules), after subsection (4)(ca) insert—

(cb) 15section 47C(6),.

17 (1) Schedule 8 (appeals) is amended in accordance with this paragraph.

(2) In paragraph 2(1), for “46 or 47” substitute “46, 47 or 49D(3)”.

(3) After paragraph 3A insert—

3B (1) This paragraph applies to an appeal under section 49D(3).

(2) 20The Tribunal must determine the appeal on the merits by
reference to the grounds of appeal set out in the notice of appeal.

(3) The Tribunal may—

(a) approve the amount of costs which is the subject of the
appeal, or

(b) 25impose a requirement to pay costs of a different amount.

(4) The Tribunal may also give such directions, or take such other
steps, as the CMA could itself have given or taken.

(5) A requirement imposed by the Tribunal under sub-paragraph
(3)(b) has the same effect, and may be enforced in the same
30manner, as a requirement imposed by the CMA under section
49D.

Part 2 Enterprise Act 2002

18 The Enterprise Act 2002 is amended in accordance with this Part.

19 (1) 35Section 14 (constitution of Tribunal for particular proceedings and its
decisions) is amended as follows.

(2) In subsection (1), after “before it” insert “, including proceedings relating to
the approval of a collective settlement under section 49A or 49B of the 1998
Act,”.

Consumer Rights BillPage 118

(3) After subsection (1) insert—

(1A) But in the case of proceedings relating to a claim under section 47A
of the 1998 Act which is subject to the fast-track procedure (as
described in Tribunal rules), the Tribunal may consist of a chairman
5only.

20 In section 15 (Tribunal rules), in subsection (1), at the end insert “, including
proceedings relating to the approval of a collective settlement under section
49A or 49B of the 1998 Act.”

21 In section 16 (transfers of certain proceedings to and from Tribunal), in
10subsection (5), for “High Court or the Court of Session of” substitute “court
of all or any part of”.

22 Schedule 4 (Tribunal: procedure) is amended in accordance with the
following paragraphs of this Part.

23 In paragraph 1 (decisions of the Tribunal), for sub-paragraph (1)(a)
15substitute—

(a) state the reasons for the decision;

(aa) state whether the decision was unanimous or taken by a
majority or, where proceedings are heard by a chairman
only, state that fact;.

24 20After paragraph 1 insert—

Enforcement of injunctions in England and Wales and Northern Ireland

1A (1) Where a person (“A”) fails to comply with an injunction granted
by the Tribunal in proceedings under section 47A or 47B of the
1998 Act, the Tribunal may certify the matter to the High Court.

(2) 25The High Court may enquire into the matter.

(3) If, after hearing any witnesses who may be produced against or on
behalf of A, and any statement made by or on behalf of A, the High
Court is satisfied that A would have been in contempt of court if
the injunction had been granted by the High Court, the High
30Court may deal with A as if A were in contempt.

25 In each of paragraphs 4(c) and 5(1)(c)—

(a) for “47B(6)” substitute “47C(3) or (4)”; and

(b) for “specified body concerned” substitute “representative in the
proceedings under section 47B of that Act”.

26 35In paragraph 6—

(a) for sub-paragraph (a) substitute—

(a) awards damages to a person in respect of a claim
made or continued on behalf of that person (but is
not the subject of an order under section 47C(3) or
40(4) of that Act); or;

(b) in sub-paragraph (b)—

(i) for “an individual” substitute “a person”,

(ii) for “his behalf” substitute “behalf of that person”; and

(c) in the full-out words at the end, for “individual” substitute “person”.

Consumer Rights BillPage 119

27 In paragraph 7—

(a) for “specified body” substitute “representative”; and

(b) for “individual” substitute “person”.

28 In paragraph 9—

(a) 5the existing provision is numbered as sub-paragraph (1), and

(b) after that provision insert—

(2) In this Schedule, where a paragraph is capable of applying
to proceedings relating to the approval of a collective
settlement under section 49A or 49B of the 1998 Act, any
10reference in that paragraph to “proceedings” includes a
reference to those proceedings.

29 In paragraph 11(2), for paragraph (a) substitute—

(a) make further provision as to procedural aspects of the
operation of the limitation or prescriptive periods in
15relation to claims which may be made in proceedings
under section 47A of the 1998 Act, as set out in section
47E(3) to (6) of that Act;.

30 For paragraph 13 substitute—

13 (1) Tribunal rules may provide for the Tribunal—

(a) 20to reject a claim made under section 47A of the 1998 Act or
a section 47B claim if it considers that there are no
reasonable grounds for making it;

(b) to reject a section 47B claim if—

(i) the Tribunal declines to make a collective
25proceedings order in respect of the proceedings
under section 47B of the 1998 Act,

(ii) the Tribunal makes a collective proceedings order
in respect of the proceedings, but the order does
not provide that the claim in question is eligible for
30inclusion in the proceedings,

(iii) the Tribunal revokes the collective proceedings
order in respect of the proceedings, or

(iv) the Tribunal varies the collective proceedings order
in such a way that the claim in question is no longer
35included in the proceedings;

(c) to reject a section 47B claim if the claim had been
previously made in proceedings under section 47A of the
1998 Act by a person who has not consented to its being
continued in proceedings under section 47B of that Act.

(2) 40In this paragraph, “a section 47B claim” means a claim made in
proceedings under section 47B of the 1998 Act at the
commencement of those proceedings.

31 After paragraph 15 insert—

Fast-track procedure

15A (1) 45Tribunal rules may make provision in relation to a fast-track
procedure for claims made in proceedings under section 47A of