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The Consumer Rights Act 2015: Consumers, Meaning That Competition a New Settlement for Collective Claims in Claims May Be Much Bigger in the Future

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The Consumer Rights Act 2015: Consumers, Meaning That Competition a New Settlement for Collective Claims in Claims May Be Much Bigger in the Future The Consumer Rights Act 2015: consumers, meaning that competition A new settlement for collective claims in claims may be much bigger in the future. competition law 2. Allow defendants to settle claims with all claimants at once using a collective Introduction settlement endorsed by the court. On 1 October 2015, the Consumer Rights Act (the 3. Allow potential defendants to try to head “CRA”) is expected to come into force. When it off litigation by establishing voluntary does so, it will herald a comprehensive overhaul redress schemes to compensate victims. of the UK’s competition litigation landscape. Individual damages claims The CRA will hand greater power and authority to The CRA introduces important amendments to the Competition Appeal Tribunal (the “Tribunal”), the Competition Act 1998 (“CA 98”), which is the which is intended to become the principal forum legislation through which private competition in which competition damages claims can be damages claims are brought. brought. The CRA will also permit individuals to bring damages claims not simply on a “follow-on” A revised section 47A to the CA 98 will permit a basis, but also on a “standalone” basis (i.e. it will claim to be issued where a person has suffered no longer be a requirement for there to be an loss or damage in respect of a proven existing finding by the Competition and Markets infringement (a follow-on claim) and also an Authority (“CMA”) or the relevant sectoral alleged, but as yet unproven, infringement of regulator, of competition law infringement, for competition law (a standalone claim). an individual to bring his or her own damages The CRA makes a number of additional changes claim). to the procedure for bringing a private In addition, the CRA introduces three new competition enforcement claim: procedures into competition litigation. In The limitation period is extended from summary these will: two to six years, aligning it with the 1. Allow claimants to bring actions on limitation period for causes of action behalf of entire classes of businesses and commenced in the High Court. The Tribunal is awarded the power to through collective proceedings. These collective grant injunctions. proceedings operate on the principle that a A streamlined procedure may be representative from the class of claimants brings introduced by the Tribunal for bringing the damages claim on behalf the entire class of private actions before it. claimants. Section 47B CA 98 is replaced by a The Tribunal rules will be amended so new provision which permits collective that it can make appropriate orders in proceedings in the form of both follow-on claims respect of other procedural elements of and standalone claims, and in the form of an 2 the litigation (such as disclosure and “opt-in” or an “opt-out” collective action. evidence). “Opt-in” collective proceedings are brought on Group and collective damages claims behalf of each class member except where any class member opts in by notifying the The existing law provides a wholly inadequate representative that the claim should be included framework for collective damages actions for in the collective proceedings breaches of competition law in England. Section 47B of the CA 98 permits specified consumer “Opt-out” collective proceedings are brought on groups to bring damages claims on behalf of at behalf of each class member except: (i) where a least two individuals, provided that an class member has opted out by notifying the infringement of competition law had been representative that the claim should not be established (i.e follow-on claims only) and included in the collective proceedings, and (ii) provided that each of the individuals concerned any class member who is not domiciled in the UK has consented to bring or continue the claim (i.e. at a specified time and who does not opt in the the claim is on the “opt-in” basis only). Only the claim. consumer organisation “Which?” received the Importantly, for collective proceedings to be special status that enables it to bring such claims, brought, it is not necessary that all of the claims only one such claim has ever been brought1, and are against all of the defendants; the collective that case settled before the effectiveness of the proceedings may combine individual claims provision could be fully tested. (brought under s. 47A) with the consent of the The CRA introduces a radical new regime for individual who made that claim with those that groups of claimants to obtain compensation have not. 1 Involving JJB Sports, brought by the Consumers’ Association in March 2007 (Case No. 1078/7/9/07, The 2 A revised section 47B CA 98 inserted by paragraph 5, Consumers Association v JJB Sports Plc). Schedule 8 CRA. 2 (6) Also of note is that: (i) the Tribunal is prohibited However, there will still be circumstances where from awarding exemplary damages in collective a claim in the High Court is preferable, such as proceedings; and (ii) contingency fees such as where: damage-based agreements (“DBAs”) are also The claim is founded on a number of prohibited as a method of funding opt-out different causes of action which the High collective proceedings. (It would seem that DBAs Court (unlike the Tribunal) has are, however, permitted in respect of opt-in jurisdiction to hear and is better suited to collective proceedings.) This restriction may limit determine. It may be that cases such as the take-up of the new CRA regime for group complex financial services disputes are actions which are well-suited to being – and in pleaded on the basis of a number of the US often are - funded on a DBA-basis. causes of action including not only anti- The new regime concerning collective competitive behaviour, but also, for proceedings will apply equally to claims arising example, unlawful means conspiracy, before and after the CRA comes into force. misrepresentation and breach of contract. The High Court would remain Which forum for these claims? the most suitable forum in which to bring The intended consequence of the reforms is to such claims. make the Tribunal a more attractive forum to Declaratory relief is sought. potential litigants who may otherwise have The claim includes a claim for exemplary 3 favoured pursuing a claim in the High Court, or - damages . in the case of those individuals wishing to pursue The claim is for follow-on proceedings a standalone damages claim - have so far had no where the focus will largely be on option but to do so. quantum, and the claimants may prefer the recognised commercial experience Alongside the introduction of these reforms, the and expertise of the Commercial Court absence of any filing fees in the Tribunal judges over the Tribunal, whose (compared with fees of up to £10,000 in the High constituent members’ commercial Court), and the knowledge that cases concerning experience may be less developed and competition issues will be dealt with by a established. specialist and dedicated panel, the Tribunal may become the preferred choice of forum for private damages claims in competition law. 3 Paragraph 6 of Schedule 8 CRA (which introduces a new section 47C into the CA 98) prohibits the award of exemplary damages by the Tribunal. 3 (6) The case would be suited to the collective proceedings before judgment is given if established robust and proactive case a “collective settlement” is reached. The management operating in the collective settlement must be approved by the Commercial Court which could maintain Tribunal which will only be granted if it momentum and greater encourage ADR considered the agreement to be “just and and settlement4. reasonable”.5 The collective proceedings (both opt-in and opt- The CRA also permits the Tribunal to approve a out) introduced by the CRA are intended to be collective settlement even where collective dealt with by the Tribunal. However, many proceedings have not been commenced. The competition damages claims have historically Tribunal may approve a proposed collective been brought in both the Chancery Division (by settlement agreement if it is satisfied that the virtue of the rule in the Competition Law Practice threshold and requirements under the CRA for Direction) and the Commercial Court (by virtue of bringing the collective proceedings would be met, the carve-out in CPR 58.1(2) for commercial including that the proposed representative could claims). It is unclear at this early stage whether it be approved and the claims would be eligible in will be possible for claimants to bring collective proceedings. proceedings under the CRA in the High Court Such a settlement agreement would be equally rather than the Tribunal, and the rules for binding on all persons falling within the class of transferring cases from the High Court to/from persons described in the collective settlement the Tribunal are yet to be finalised. The forum in order made by the Tribunal other than those who which to commence a claim is an important opt out or those domiciled outside the UK and consideration for litigants, and developments in who do not opt in within the specified time. this area should be watched closely once the CRA and the new collective proceedings regime comes Collective settlements in the Netherlands into force. To date, the only European jurisdiction which has Collective settlements promoted collective settlements has been the Netherlands. The procedure for collective Under a new procedure introduced by the CRA, settlements which is available in that jurisdiction defendants will be able to put an end to opt-out 6 is known as the “WCAM Settlement” , which is 4 The effectiveness of the new Tribunal rules in respect of case management remains to be tested.
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