Introduction and Summary

In January 2016 the Competition Appeal Tribunal (CAT) dealt with the first case to be brought under the new and recently introduced “fast track” competition litigation procedure under the Consumer Rights Act 2015.

The new fast track procedure was designed to allow, primarily, small and medium sized enterprises to gain fast and effective relief from competition law infringements and was introduced by Section 81 and Schedule 8 of the Consumer Rights Act 2015.

This amended relevant sections of the Competition Act 1998 and Schedule 4 of the Enterprise Act 2002. The section came into force in October 2015.

The idea behind the new procedure was to place time and cost limits on otherwise complex and difficult competition law litigation to allow those companies which desperately needed injunctive remedies but did not have deep pockets to pursue redress through the Courts. Proceedings under this procedure have to be brought before the Competition Appeal Tribunal.

The principal remedy available before the CAT under this procedure was to permit the court to grant injunctive relief to a claimant who need not given an undertaking as to damages. Aggrieved small and medium sized enterprises often argued that the possible award of future damages in competition law cases were no real remedy if their business has already been foreclosed from a market or otherwise gone into liquidation.

NCRQ Limited v. IOSH Case

The current case was brought by NCRQ Ltd against the Institution of Occupational Safety and Health (“the Institution”). The Institution is a health and safety membership organisation that accredits health and safety qualifications. NCRQ Limited is company that has developed qualifications, training material and courses in health and safety, including a diploma in applied health and safety (the Diploma). NCRQ applied to the Institution for the accreditation of a diploma which was refused.

NCRO contended that the Institution’s refusal to grant accreditation was an abuse of a dominant position. They therefore brought an action alleging a breach of the Chapter II prohibition of the Competition Act 1998 and Article 102 of the TFEU.

NCRO demanded that the Institution be required to reconsider their decision and grant accreditation. NCRQ sought a declaration, an injunction restraining the Institution from continuing to abuse that position and damages. When filing its claim NCRQ also applied for a fast-track designation of the proceedings pursuant to Rule 58 of the CAT Rules.

This case was highly unusual as the Institution appeared to have no obvious commercial purpose in abusing its purported dominance it had in this area. It is likely that the action was designed and succeeded to bring pressure on them to come to the negotiating table to gain accreditation of the diploma which the Claimant so badly wanted.

The CAT had scheduled a hearing in respect of the interim injunction application for 12 January 2016. However the day before that interim application the case settled.

Settlement

On 11 January the parties announced they had agreed a full and final settlement of the proceedings, including NCRQ’s application for injunctive relief, on the basis that the Institution will for a period of three years (from 11 January 2016) grant accreditation at the level of graduate membership to NCRQ’s Diploma.

On the basis of this settlement, the CAT has ordered that all further proceedings in this action be stayed. However, the parties have liberty to apply to the CAT to enforce the terms of the settlement between them. No order as to costs has been made (with the agreement of the parties).

This article was first published in Governance and Compliance magazine, www.govcompmag.com