Summary: In the UK’s first opt-out class action judgment, the Competition Appeal Tribunal has refused to allow the Claimant to proceed unless it reformulates its claim appropriately. Whilst the Tribunal did allow the opportunity for the Claimant to return with a reformulated claim (suggesting the Tribunal is keen for these claims to advance where possible), it has recently been confirmed that the application is not being pursued.

Background

The ability to bring collective actions was introduced in October 2015 by the Consumer Rights Act. Under the new rules, any person can apply for permission to bring claims for competition law infringements, acting as a representative for a class of persons who are alleged to have suffered losses as a result of the infringement. The proposed class representative must first apply for a Collective Proceedings Order from the Competition Appeal Tribunal (“CAT”) which will be granted if (a) the claim is certified as eligible and (b) the class representative is authorised as suitable. In May 2016, Ms Dorothy Gibson – the General Secretary of the National Pensioners Convention - made the first such application, against Pride Mobility Scooters Limited.

Ms Gibson’s claim was a follow-on action in respect of infringements found in the Office of Fair Trading’s (“OFT”) Decision of 2014. The Decision related to agreements between Pride and eight of its retailers (“the Relevant Retailers”) which prohibited them from advertising certain models online at prices below the recommended retail price (“the Prohibition”). The claim sought damages on behalf of everyone who purchased a Pride mobility scooter in the UK between 1 February 2010 and 29 February 2012 (including purchases from retailers who were not subject to the Prohibition). It was estimated that the class comprised of between 27,000-32,000 people and losses were estimated at between £2.7 million and £3.2 million (excluding interest).

Judgment

Follow-on claim

The problem Ms Gibson faced was that her claim had been formulated as a follow-on claim but the Decision only found an infringement in relation to the Relevant Retailers. Ms Gibson sought to argue that the damage suffered flowed from Pride’s market-wide policy and the conduct had affected the whole mobility scooter marker. The CAT disagreed, saying that a follow-on claim could only be in relation to losses suffered by consumers specifically as a result of the infringements found by the OFT, and not those that flowed from Pride’s policy (a stand-alone claim could not be brought as it would have been time barred under the new rules). The judgment stated: “If we were to adopt the approach urged by [Ms Gibson], we would […] allow [Ms Gibson] to circumvent the boundaries of a follow-on action, and in effect recover for the represented class by the back door what she could not recover by the front”.

The CAT adjourned the application to allow Ms Gibson and her economic advisers an opportunity to reformulate the claim. In doing so (despite objections from Pride), the Tribunal pointed out that claimants are usually allowed the opportunity to amend their case in advance of trial: “we do not see that a harsher test should apply just because these are collective proceedings”. Referring to the particularly vulnerable consumers that the proposed class incorporated, the judgment states: “if there is a plausible way in which [Ms Gibson] may be able to pursue collective proceedings on their behalf, it would be harsh to deny her that opportunity”. However, a court order dated 11 May 2017 makes clear that, in the event, Ms Gibson “has decided not to pursue her application for a collective proceedings order”.

Lessons for opt-out actions

Despite this, the judgment gave some useful guidance as to how the CAT will view these sorts of cases in the future:

Canadian approach: The CAT took the opportunity to make it clear that it did not intend to follow a US approach to class certification, but indicated a willingness to consider Canadian case law and in particular the test that any expert methodology proposed must be “credible and plausible”.

Expert methodology: The methodology being proposed by Ms Gibson’s economists was subject to a fair amount of scrutiny, with her expert being called as a witness and questioned by the Tribunal about his proposed methodology and the feasibility of his approach to the calculation of damages. This was in order to ascertain whether a “sufficiently sound and proper basis” had been established for the case to proceed.

Suitability of class representative: The CAT confirmed that it was just and reasonable for Ms Gibson to act as class representative. Although she had no prior litigation experience the Tribunal found her to be an experienced campaigner and spokesperson for the National Pensioners Convention who had properly instructed a law firm and class action administration company with experience of group litigation. The CAT also seemed to adopt a fairly “light touch” approach as regards adverse costs. Although it was noted that the ATE cover that had been arranged by the Claimant was not sufficient to cover all of Pride’s costs, the Tribunal simply noted that: “we do not at this stage consider that the question of her ability to pay Pride’s recoverable costs is a basis for refusing to authorise Ms Gibson to act as class representative”.

Disclosure from third parties: In inviting Ms Gibson to reformulate her claim, the Tribunal suggested that “limited orders for third party disclosure may be necessary”, despite the fact that disclosure, for the purposes of the CPO application, is discouraged in the new rules.

BLP Assessment

The CAT’s decision to adjourn the CPO application, rather than dismissing it altogether, indicates a willingness on its part to encourage opt-out claims. One assumes, given the apparently limited scope, on the facts, for any strictly follow-on claim, that the costs/benefit analysis simply did not stack up for Ms Gibson. Although, for those following these fledgling opt-out class actions with interest, it is disappointing that this claim will ultimately not be proceeding, the judgment gives a useful insight for practitioners or individuals considering bringing these claims in the future. Some clarity has been provided in relation to the approach the CAT will adopt in future cases as regards issues such as the expert analysis required to test the claim and the suitability of the proposed class representative.