Consumer Rights Bill (HL Bill 64)

9 (1) Section 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) 5After subsection (1) insert—

“(1A) An 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
10decision 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
Tribunal in proceedings under section 47A or in collective
proceedings as to the amount of an award of damages or other sum
15(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
arising from a finding of the Tribunal as to an infringement of a
prohibition listed in section 47A(2).

(1D) 20In 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) made in proceedings under section 47A or included in
collective proceedings.”

(4) 25In subsection (2)(a), at the beginning insert “except as provided by
subsection (2A),”.

(5) After subsection (2) insert—

“(2A) An appeal from a decision of the Tribunal in respect of a claim
included in collective proceedings may be brought only by the
30representative in those proceedings or by a defendant to that claim.”

10 (1) After section 49 insert—

“Settlements relating to infringements of competition law

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

(1) 35The 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) a collective proceedings order has been made in respect of the
claims, and

(b) 40the Tribunal has specified that the proceedings are opt-out
collective proceedings.

(2) An application for approval of a proposed collective settlement must
be 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) 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.”

(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—

(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) The CMA may approve a redress scheme under subsection (2)(b)
40subject to a condition or conditions requiring the provision of further
information about the operation of the scheme (including about the
amount or value of compensation to be offered under the scheme or
how this will be determined).

(5) If the CMA approves a redress scheme subject to such a condition, it
45may—

(a) approve the scheme subject to other conditions;

(b) withdraw approval from the scheme if any conditions
imposed under subsection (4) or paragraph (a) are not met;

(c) approve a redress scheme as a replacement for the original
scheme (but may not approve that scheme subject to
5conditions).

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

(7) But, where the CMA approves a redress scheme subject to a
condition of the kind mentioned in subsection (4), subsection (6)
10does not prevent further information provided in accordance with
the condition from forming part of the terms of the scheme.

(8) 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
15for approval of a redress scheme, including the information
to be provided with the application;

(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) 20provide that the CMA may approve a redress scheme only if
it 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) 25provide that the CMA may approve a redress scheme only if
(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
30account, or may not take into account, in deciding whether to
approve a redress scheme.

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

(a) applications for approval of redress schemes,

(b) the approval of redress schemes, and

(c) 35the enforcement of approved schemes, and in particular as to
the criteria which the CMA intends to adopt in deciding
whether to bring proceedings under section 49E(4).

(10) Guidance under subsection (9) must be approved by the Secretary of
State before it is published.

(11) 40In this section and sections 49D and 49E—

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

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

• 45“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, or

  Consumer Rights BillPage 125

  (b)

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

• “redress scheme” means a scheme under which a person offers
  5compensation in consequence of an infringement decision
  made in respect of that person.

(12) For 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
10result of the infringement decision to which the redress
scheme relates.

49D Redress 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
15relating to the application.

(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) 20by 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
25scheme 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) 30A 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
35the 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
40for 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
for 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
5compensating 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) Where a person has entered into a settlement agreement with the
compensating party, that agreement remains enforceable
notwithstanding the release of the compensating party under
10subsection (7) from the duty.

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

(a) in 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) 15Section 58 (findings of fact by CMA) is amended in accordance with this
paragraph.

(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)
20insert—

“(za) in respect of an infringement decision;”, and

(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
25prohibition (as the case may be)”.

(4) In 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) 30In 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.”

14 (1) For section 58A substitute—

“58A Infringement decisions

(1) 35This section applies to a claim in respect of an infringement decision
which 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
40it has become final.

(3) An infringement decision specified in section 47A(6)(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(6)(a) and an
appeal has been brought against the decision under section
46 or 47, when that appeal—

(i) has been withdrawn, dismissed or otherwise
5discontinued, or

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

(c) 10where an appeal has been brought in relation to the decision
under section 49, when that appeal—

(i) in the case of an appeal against the infringement
decision or against a decision which confirmed the
infringement decision, has been withdrawn,
15dismissed or otherwise discontinued, or

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

(d) 20where an appeal has been brought to the Supreme Court in
relation to the decision, when that appeal—

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

(ii) 25has confirmed the infringement decision.

(4) An infringement decision specified in section 47A(6)(c) becomes
final—

(a) when the time for appealing against that decision in the
European Court expires without an appeal having been
30brought; or

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

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

(ii) 35has confirmed the infringement decision.

(5) This section applies to the extent that the court or the Tribunal would
not 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) 40in Scotland, the Court of Session or the sheriff.”

(2) Section 58A of the Competition Act 1998 (as substituted by sub-paragraph
(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
45paragraph.

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

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

Consumer Rights BillPage 128

• ““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
  5proceedings;”;

• ““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
  10section 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
  15proceedings;”;

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

  (a)

  has opted in to opt-in collective proceedings,

  (b)

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

  (c)

  has 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) 25In this Part, in respect of proceedings in Scotland, “defendant” is to
be read as “defender”.

(1B) Sections 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
30this Part.”

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

“(cb) section 47C(7),”.

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) 35After paragraph 3A insert—

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

(2) The 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) 40approve the amount of costs which is the subject of the
appeal, or

(b) impose 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
manner, as a requirement imposed by the CMA under section
49D.”

5Part 2 Enterprise Act 2002

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

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

(2) 10In 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,”.

(3) After subsection (1) insert—

“(1A) But in the case of proceedings relating to a claim under section 47A
15of the 1998 Act which is subject to the fast-track procedure (as
described in Tribunal rules), the Tribunal may consist of a chairman
only.”

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
2049A or 49B of the 1998 Act.”

21 In section 16 (transfers of certain proceedings to and from Tribunal), in
subsection (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
25following paragraphs of this Part.

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

“(a) state the reasons for the decision;

(aa) state whether the decision was unanimous or taken by a
30majority or, where proceedings are heard by a chairman
only, state that fact;”.

24 After 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
35by the Tribunal in proceedings under section 47A or 47B of the
1998 Act, the Tribunal may certify the matter to the High Court.

(2) The 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
40Court is satisfied that A would have been in contempt of court if
the injunction had been granted by the High Court, the High
Court may deal with A as if A were in contempt.”