GLOBAL PRACTICEINTRODUCTION GUIDE UK Definitive global law guides offering comparative analysis from top ranked lawyers ContributingTRENDSLAW AND AND PRACTICE: Editor DEVELOPMENTS: p.p.2 ElizabethDaleContributed Cendali by Morony HausfeldKingZhong & Lun Spalding & LawCo LLP Firm CliffordKirklandThe ‘Law‘Trends &Chance& EllisPractice’& Developments’ LLPLLP sections sectionsprovide easilygive anaccessible overview information of current Antitrusttrendson navigating and developments the legal insystem local legal when markets. conducting Leading business lawyers analysein the particularjurisdiction. trends Leading or provide lawyers a broader explain discussionlocal law ofand key practice developments at key Litigationintransactional the jurisdiction. stages and for crucial aspects of doing business. TRENDS AND DEVELOPMENTS: p.<?> Contributed by Hogan Lovells (CIS) The ‘Trends & Developments’ sections give an overview of current trends and developments in local legal markets. Leading lawyers analyse UK particular trends or provide a broader discussion of key developments Hausfeld & Co LLP in the jurisdiction. chambers.com INTRODUCTION TRENDS AND DEVELOPMENTS Trends and Developments Contributed by Hausfeld & Co LLP Hausfeld & Co LLP is a leading disputes-only specialist nance disputes against Google and other tech giants. Where law firm with offices on both sides of the Atlantic, counting settlement is not possible, we are one of the few claimant about 300 staff. We pioneered competition-damages actions firms with experience in taking cartel damage claims to and, having the largest dedicated competition-damages ac- trial. Our ability to offer flexible engagement structures and tions team in Europe, have been involved in more recover- willingness to share risk, enables clients to pursue claims ies than any other firm. As market leaders, we regularly act with a level of cost risk best suited to their circumstances. for some of the world’s largest organisations in some of the With 11 offices across Europe and the US, we can litigate in most high profile and complex cartels such as Trucks, Air jurisdictions that suit our clients best. Cargo, the Interchange Fees litigation and abuse of domi- Authors Anna Morfey is a solicitor advocate and William Towell is counsel for Hausfeld partner for Hausfeld London. She has London and has considerable experience extensive experience advising on EU/UK in dealing with complex and high-value competition law issues and litigating commercial disputes. His particular focus competition-damages claims across the is on competition damages and corporate English courts, up to the Supreme Court, and technology litigation. His recent and at European level. She has represented household- experience includes the interchange fee litigation, name clients in some of the most high-profile cartel claims involving 13 of the UK’s largest retailers in claims against including bearings, power cables and marine hoses. She is MasterCard and Visa and the truck cartel litigation in the acting for a vertical search engine against Google and is UK and the Netherlands, involving several thousand involved in several investigations of abuse of dominance businesses across the EU. Will regularly publishes articles claims. Anna has published widely both in Europe and the on the latest competition policies and legal developments. US and regularly speaks at competition conferences. She is on the Editorial Board of Global Competition Review and co-chairs the International Bar Association’s antitrust litigation working group. 2 TRENDS AND DEVELOPMENTS INTRODUCTION Collective Proceedings related issues of fact or law: not that the claims are certain One of the undeniable headline-grabbers of the past year, to succeed.” and one that is likely to dominate the competition litigation headlines into 2020, is the development of ‘class actions’ in As regards the commonality requirement, the Court of the UK. Specifically, the opt-out collective actions regime Appeal endorsed the CAT’s adoption of the test set out in the that came into force with the adoption of the Consumer Canadian Supreme Court case of Pro-Sys Consultants Ltd v Rights Act 2015, accompanying Competition Appeal Tribu- Microsoft Corp. but came to the opposite conclusion on the nal (CAT) Rules 2015 and CAT Guide to Proceedings 2015, facts: rejecting the need for a bottom-up approach to quan- heralded expectations of a new era in competition damages tum and instead finding that “there is no requirement… to claims. approach the assessment of an aggregate award through the medium of a calculation of individual loss” and that “pass-on Initial attempts to bring opt-out collective proceedings got to consumers generally satisfies the test of commonality”. Also off to a slow start: only two cases cases (Dorothy Gibson v noteworthy was the Court of Appeal’s finding that “certifi- Pride Mobility Products Limited and Walter Hugh Merricks cation is a continuing process under which a CPO may be CBE v Mastercard Incorporated and others) were brought varied or revoked at any time… The making of a CPO does within the first two years of the new regime, neither of which not therefore prevent the CAT from terminating the collec- passed the ‘certification’ stage in the CAT. However, one of tive proceedings if it subsequently transpires, for example, those – Merricks – is shaping the law on opt-out collective that the proposed representative is unable to access sufficient actions insofar as the test for obtaining a collective proceed- data to enable the experts’ method of calculating the rate of ings order (CPO) is concerned. pass-on to be performed. But a decision of that kind is much more appropriate to be taken once the pleadings, disclosure Merricks is a claim brought by the former Financial Ombuds- and expert evidence are complete and the Court is dealing man, Walter Merricks, on behalf of a group of around 46 mil- with reality rather than conjecture.” As regards distribution lion consumers against Mastercard in relation to interchange of damages, the Court of Appeal held that this was not a mat- fees. The claim, which is valued at around £14 billion, spans a ter to be determined at the certification stage at all. 16-year period (1992-2008) and the putative class is anyone who “purchased goods and/or services from businesses sell- Mastercard has been granted permission to appeal to the ing in the UK that accepted Mastercard cards”. Supreme Court, and a hearing is anticipated in 2020. Whilst it may not therefore be the final word on the certification The CAT refused to certify the claim, essentially for two rea- criteria, the Court of Appeal’s judgment does signal that sons: firstly, the CAT considered there was insufficient evi- the road to certification for future opt-out collective actions dence to determine how individual Masterard users would may be more straightforward than has been seen thus far. If have suffered loss, especially given variances in rates of pass the Supreme Court upholds the Court of Appeal’s findings, on, and therefore the ‘commonality’ requirement was not this could be the breakthrough that lowers the entry level met; and secondly, because of doubts over the manner in to CPO certification and therefore opens the doors to more which any potential damages could ultimately be properly claims of this nature. At the time of writing, five other CPO distributed. applications have been issued with certification pending: two (competing) applications in respect of the trucks cartel; two After some satellite litigation which determined the CAT’s stand-alone claims in respect of alleged abuse of dominance judgment could be appealed, the Court of Appeal allowed by train operating companies; and one in respect of the for- Mr Merricks’ appeal, and remitted the CPO application to eign exchange (Forex) cartel. Subject to the Supreme Court’s the CAT for re-hearing. timing, many of these cases can be expected to proceed over the next twelve months, with further clarity being obtained The Court of Appeal judgment set a relatively low bar in as to how the still-nascent opt-out collective actions regime applying the certification criteria and was expressly critical will work. of the (higher) threshold the CAT applied. As regards the standard of proof appropriate at the certification stage, the The Fast-track Procedure Court of Appeal considered the overarching test should be Competition litigation in the UK can be expensive and time- one of “real prospects of success”, noting that “a certification consuming, involving potentially extensive disclosure, sub- hearing is no different from any other interlocutory assess- stantial witness and expert evidence and often interlocutory ment of the prospects of success in litigation made before hearings on issues such as jurisdiction, and applicable law. the completion of disclosure and the filing of evidence. Its The Air Cargo litigation, for example, was on foot for ten purpose is to enable the CAT to be satisfied that (with the years before the claims settled; and some of the retailers in necessary evidence) the claims are suitable to proceed on early rounds of the interchange litigation are still awaiting a collective basis and that they raise the same, similar or a resolution despite having commenced proceedings as far back as 2012. 3 INTRODUCTION TRENDS AND DEVELOPMENTS The introduction of the Fast-track Procedure (FTP) that also was able to avail itself of the FTP, resulting in a judgment came into force with the adoption of the Consumer Rights against the Law Society and, once that finding of liability had Act 2015, and accompanying CAT Rules 2015 and CAT been made, a successful mediation followed. Guide to Proceedings 2015, was thought by some to be a way of opening up access to damages claims to small and The second was Melanie Meigh (trading as The Prinknash medium-sized enterprises (SMEs), who had tended not to Bird and Deer Park) v Prinknash Abbey Trustees Registered, litigate competition claims, perhaps because of the time and a claim filed in February 2019.