Business, Innovation and SkillsWritten evidence submitted by the Competition Appeal Tribunal


1. Introduction

1.1 This document sets out the Competition Appeal Tribunal’s (the “Tribunal”) response to the Business, Innovation and Skills Committee’s (the “Committee”) call for evidence in relation to the draft Consumer Rights Bill (the “Bill”). The Tribunal’s response is limited to the proposed measures relating to private actions in competition law, to the extent that they affect the Tribunal.

1.2 As the Committee may be aware, the President of the Tribunal responded to the Government’s consultation on options for reform of private actions in competition law on 19 July 2012 (the “Consultation Response”).1

1.3 The Tribunal welcomes the provisions in the Bill which address private actions in competition law (contained in Schedule 7), particularly the expansion of the jurisdiction of the Tribunal to enable it to hear “stand-alone” actions for infringement of the competition prohibitions, to provide injunctive relief in relation to such actions, and to hear claims for collective redress on an “opt-out” basis where appropriate. The Tribunal’s position is described in further detail below.

1.4 By way of background information, Annex A to this response contains a brief overview of the Tribunal’s role and current principal functions.

1.5 The President and the Registrar of the Tribunal would be happy to answer any queries in relation to or arising out of this response.

2. Stand-alone Claims for Damages2

2.1 The Tribunal welcomes the proposed extension of its jurisdiction enabling it to hear “stand-alone” as well as “follow-on” actions for infringement of the competition rules, which is reflected in the draft substituted section 47A of the Competition Act 1998 (the “1998 Act”).

2.2 At present, the Tribunal is only able to hear “follow-on” claims (ie claims for damages where a competition authority (usually either the UK’s Office of Fair Trading or the European Commission) has already investigated and found an infringement to have occurred). The Tribunal currently has no jurisdiction to entertain a private law claim which alleges an infringement, sometimes called a “stand-alone” case. If a claimant wishes to pursue such a claim then he or she must go the High Court. The Tribunal’s role is therefore one of determining issues of causation and quantum of loss in the context of a follow-on action. It is wholly anomalous that the specialist Tribunal is confined to this role whereas the more generalist High Court has jurisdiction to tackle the specialist issues of law and economics which often arise in actions seeking to establish that an infringement has occurred. The anomaly is even greater, in that the Tribunal can and does decide those self same issues in the context of its public law jurisdiction as the appeal court from infringement decisions of the Office of Fair Trading.

2.3 The proposed reform will remove the anomaly and allow the Tribunal to hear actions founded on “alleged” and not just established infringements of the competition law prohibitions, on an equal basis with the High Court. This reform will not only rationalise the Tribunal’s jurisdiction and remove the current artificial obstacles to litigants who wish to bring their claims in this forum, but it will also make better use of the multi-disciplinary expertise and experience of its panels of Chairmen and Members. As the Government has recognised, this specialist expertise, combined with the Tribunal’s flexible procedures and efficient case management, make the Tribunal well-equipped to take on this enhanced role.

3. Injunctions3

3.1 Currently, the Tribunal has no power to grant injunctive relief. However, the power to grant interim and final injunctions will be very important, indeed essential, in relation to the Tribunal’s proposed jurisdiction to determine stand-alone claims. Harm resulting from a breach of the competition rules is not always capable of being fully compensated by an award of damages. Irreparable damage can occur, and the ability to injunct an allegedly infringing undertaking at an early stage, before such damage has been sustained, is likely to be a crucial form of relief in the context of abuse of dominance cases, especially for small and medium enterprises (“SME”).

3.2 The proposal to enable the Tribunal to grant injunctive relief where appropriate is therefore to be welcomed. As far as enforcement of an injunction in the event of an alleged breach of it is concerned, the draft legislation4 requires that the Tribunal “certify” a breach of the injunction to the High Court. This seems to envisage a possible double trial of the alleged breach of the Tribunal’s order, with evidence and argument being capable of deployment on the same issues in both the Tribunal and the High Court. Although somewhat cumbersome on paper, in practice this procedure may well cause few problems, as breaches of such orders are likely to be relatively rare.

4. Fast-track Regime5

4.1 The Explanatory Notes to the Bill explain that the purpose of the proposed fast-track procedure is to enable “simpler” cases brought by SMEs to be resolved more quickly and at a lower cost. This is a very worthy aspiration. Indeed, as noted by the President of the Tribunal in the Consultation Response, the Tribunal already invariably aims, through its existing flexible rules and active case management, to streamline every case to the extent practicable in the light of its circumstances and the interests of justice. These procedures can be deployed speedily and flexibly to deal with a very wide array of circumstances.

4.2 The Tribunal therefore endorses the principle that SMEs should be able to invoke competition law quickly and effectively when faced with apparently anticompetitive practices. Without doubt the achievement of this objective will be significantly advanced by the proposal to grant the Tribunal jurisdiction to hear stand-alone actions and to grant injunctive relief. For example, this reform will enable SMEs to come to the Tribunal and, where appropriate, obtain swift interim relief against allegedly abusive conduct on the part of a competitor who is dominant in the relevant market.

4.3 In relation to the provision of the proposed fast-track regime, the Tribunal draws attention to the following points in particular:

4.3.1It will not necessarily be straightforward to identify what constitutes a “simple” case, and considerable thought will need to be given to this question: in the competition law field, simplicity is not often encountered. One cannot assume, for example, that because the parties are of a relatively small size, the issues raised by the claim will be simple, any more than the opposite is true where larger parties are involved. Very complex issues can arise in relation to claims brought by small companies: 2 Travel and Albion Water are cases in point.6

4.3.2It is not clear why it should be thought that the expertise of the Tribunal’s panel of Ordinary Members will be dispensable in a fast-track case.7 Although there is certainly a case for giving the Tribunal more flexibility to sit with a Chairman alone, for example where a case raises only questions of law or procedure, there is no reason to believe that this is more likely to be appropriate in fast-track cases. The reverse may be true—where matters are to be resolved swiftly there may be all the more need for relevant economic, accountancy or other expertise, which the Tribunal’s multi-disciplinary constitution provides.

4.3.3In formulating a particular procedure, care will need to be taken to ensure that there is flexibility to apply, or not apply, the fast-track depending on the particular circumstances, and to avoid the risk that it is too unwieldy and rigid to deal with all the different types of case which are likely to arise in practice.

5. Collective Proceedings8

5.1 The Tribunal welcomes the Bill’s introduction of a new system of collective redress for competition claims. This proposal recognises the deficiencies in the existing procedures for collective remedies,9 and if implemented would fill the undoubted procedural gap which exists in the justice systems within the UK, none of which provides any effective remedy for mass small claims. Typically, these are claims available to hundreds, or thousands or tens of thousands of claimants, each of whom can claim only a very small amount, such that no person would deem it worth the expense of mounting the claim individually. As a result of this procedural gap, those infringing competition laws are on occasion able substantially to escape liability for their wrongs, whereby they are unjustly enriched and victims are left without redress. The proposed reform recognises that the only effective remedy in some such cases is likely to be an “opt-out” collective action, ie an action brought by a person who represents all those who have suffered as a result of the same wrong, and where all such victims are bound by (and are entitled to benefit from) the outcome of the action unless they have opted-out.

5.2 Most importantly, the proposal also reflects the need to avoid opening the way to abuses of the kind which are perceived to have arisen in certain other jurisdictions (notably the US) where opt-out collective redress has long been available. The Bill introduces a procedural mechanism, with appropriate safeguards against the risk of abuse, to be used as a vehicle for small mass claims.

5.3 The Tribunal agrees that there should be a strong set of safeguards to ensure that the introduction of a regime which includes the possibility of an opt-out procedure does not lead to the inadvertent creation of a litigation culture, to unfair treatment of defendants or to any of the perceived abuses to which we refer above. Many of the safeguards referred to in the Bill are left to be determined by Tribunal rules, including—for example—the criteria which the Tribunal will apply when certifying (as the Bill provides it must) that claims are suitable to be brought as collective proceedings, and as either opt-in or opt-out.10

5.4 The Tribunal is confident that appropriate rules can be identified and formulated which will address the various concerns understandably felt by those who fear that an opt-out system might be abused, and which will ensure that opt-out claims are only certified where such a procedure is fully justified, and where all necessary safeguards are in place.

5.5 Opt-out collective redress procedures are working well in other common law jurisdictions (eg Canada and Australia) and are now becoming available in various forms in some EU Member States (particularly in some Scandinavian jurisdictions and in the Netherlands). In the absence of an effective procedure to deal with mass small claims in any of the UK jurisdictions, litigation relating to such claims will be carried out elsewhere in Europe.

14 August 2013

Annex A



The Enterprise Act 2002 provided for the establishment of the Competition Appeal Tribunal (Tribunal). The jurisdiction of the Tribunal extends to the whole of the United Kingdom.

Principal Functions of the Tribunal

The principal functions of the Tribunal are to hear appeals against: decisions of the Office of Fair Trading (OFT) under Chapters I and II of the Competition Act 1998 and Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU); decisions of regulators in the main utility, railway and air traffic service sectors under those provisions; certain decisions of the Office of Communications (OFCOM) regarding the communications and broadcasting sectors under the Communications Act 2003; and decisions of the OFT, the Competition Commission (CC) or the Secretary of State on merger cases and market investigations under the Enterprise Act 2002. The Tribunal may also hear certain actions for damages arising out of an infringement of UK or EU competition law.

Further powers have been given to the Tribunal to hear appeals from decisions of the OFT under the Payment Services Regulations 2009. Pursuant to Schedule 2 of the Energy Act 2008 the Tribunal may also hear appeals in respect of determinations made by the Gas and Electricity Markets Authority (GEMA) in respect of property schemes. Under the Energy Act 2010, the Tribunal is also able to hear appeals in relation to decisions taken by GEMA in respect of the application of a market power licence condition to particular types of exploitative behaviours in electricity markets. The Tribunal may also hear appeals in respect of certain decisions taken by OFCOM pursuant to the Mobile Roaming (European Communities) Regulations 2007 and the Authorisation of Frequency Use for the Provision of Mobile Satellite Services (European Union) Regulations 2010. The Postal Services Act 2011 provides for an appeal to the Tribunal in respect of certain decisions taken by OFCOM in relation to the regulation of postal services.

In the last year, the Tribunal has been given two additional functions. First, the Civil Aviation Act 2012 provides for a right of appeal to the Tribunal in respect of market power determinations made by the Civil Aviation Authority. Secondly, under the Health and Social Care Act 2012, Monitor, the regulator for health and adult social care services in England, has concurrent powers with the OFT to enforce provisions of the Competition Act 1998 and the TFEU, and to make market investigation references to the CC under the Enterprise Act 2002 in relation to the provision of healthcare services in England. Such decisions may be appealed to the Tribunal.

Pursuant to the Enterprise and Regulatory Reform Act 2013 (when the relevant provisions come into force) the Tribunal’s powers will also be extended to granting warrants under the Competition Act 1998 and the Enterprise Act 2002 to enter premises.

Further, the government’s response to the Department for Business, Innovation & Skills’ (BIS) April 2012 consultation on private actions in competition law signalled the enhancement of the Tribunal’s role in relation to private damages claims, including an expanded jurisdiction to hear standalone damages claims. That has now been followed up with the publication of the draft Consumer Rights Bill (June 2013) which provides for the necessary legislative changes to be made.

Deciding Cases

Each case is heard and decided by a cross disciplinary tribunal consisting of the President (currently the Honourable Mr Justice Barling, a judge of the Chancery Division of the High Court) or a Chairman (either a High Court judge or a senior lawyer), and two other members (who are experts in competition law and/or related areas such as economics, accountancy, and business).

The decisions of the Tribunal may be appealed on a point of law or as to the amount of any penalty to the Court of Appeal in England and Wales, the Court of Session in Scotland or the Court of Appeal in Northern Ireland.

Membership of the Tribunal

The Tribunal’s membership comprises:

The Honourable Mr Justice Barling*

*The current President’s term of office will expire in November 2013 and his successor will be appointed by the Lord Chancellor on the recommendation of the Judicial Appointments Commission.

Panel of Chairmen
The Honourable Mr Justice Henderson
The Honourable Mr Justice Morgan
The Honourable Mr Justice Norris
The Honourable Mr Justice Sales
The Honourable Mrs Justice Proudman
The Honourable Mr Justice Arnold
The Honourable Mr Justice Roth
The Honourable Mr Justice Newey
The Honourable Mr Justice Hildyard
The Honourable Mrs Justice Asplin
The Honourable Mr Justice Birss
The Honourable Mrs Justice Rose
Lord Carlile CBE, QC
Heriot Currie QC (Scotland)
Peter Freeman CBE, QC (Hon)
Andrew Lenon QC
Hodge Malek QC
Marcus Smith QC

Ordinary Members
William Allan
Professor John Beath
Michael Blair QC (Hon)
Timothy Cowen
Margot Daly
Dr Clive Elphick
Dermot Glynn
Stephen Harrison
Brian Landers
Jonathan May
Professor Colin Mayer
Clare Potter
Professor Gavin Reid
Joanne Stuart OBE
Professor Stephen Wilks

Charles Dhanowa OBE, QC (Hon)


2 Proposed new section 47A of the Competition Act 1998

3 Proposed new subsections 47A(3)(c) and 47D of the 1998 Act

4 Proposed new paragraph 1A of Schedule 4 of the Enterprise Act 2002 (the “2002 Act”)

5 Proposed new paragraph 15A of Schedule 4 of the 2002 Act

6 2 Travel Group PLC (in liquidation) v Cardiff City Transport Service Limited [2012] CAT 19; Albion Water Limited v Dwr Cymru Cyfyngedig [2013] CAT 6

7 Proposed new subsection 14(1A) of the 2002 Act

8 Proposed new sections 47B–47C of the 1998 Act

9 Including in relation to section 47B of the 1998 Act, the Group Litigation Order mechanism in the High Court and CPR Rule 19(6)

10 Proposed new paragraph 15B of Schedule 4 of the 2002 Act

Prepared 20th December 2013