The first ever application to create a class action under the Consumer Rights Act 2015 regime, in relation to anti-competitive conduct in the mobility scooter market, has been adjourned following faults found with the applicant’s case concerning the definition of the proposed classes and the methodology used to formulate them. The ruling provides the first guidance as to how the CAT will interpret the statutory requirements for granting a collective proceedings order: Dorothy Gibson v Pride Mobility Products Ltd [2017] CAT 9.

The Consumer Rights Act 2015 (CRA) introduced significant changes to competition law private actions in the UK, in particular by expanding the jurisdiction of the Competition Appeal Tribunal (CAT) and creating a regime for opt-in or opt-out collective proceedings. Collective proceedings are commenced by the person who proposes to be the class representative, but may be continued only on the basis of a collective proceedings order (CPO) made by the CAT. In order to make a CPO, the CAT must (i) consider that the claims raise common issues of fact or law and are suitable to be brought in collective proceedings; and (ii) authorise the proposed class representative on the basis that it is just and reasonable for that person to act as class representative in the proceedings.

The Applicant, Ms Dorothy Perkins, General Secretary of the National Pensioners Convention, sought a CPO for certification as the representative of an opt-out class of people who purchased the Respondent’s (Pride) mobility scooters in the UK during a period in which the Respondent had been found by the Office of Fair Trading (OFT) to have been infringing competition law in the mobility scooter market.

Timing

The transitional provisions for claims arising before the CRA came into force (1 October 2015) but issued after that date provide that follow-on claims can be brought under the new CRA regime within two years of the competition authority decision on which they rely becoming final (in this case the OFT decision became final in May 2014 and the claim was issued in May 2016, within the two-year limit). Pride claimed that such retrospectively was contrary to the European Convention on Human Rights, the Human Rights Act, general principles of EU law (in particular legal certainty and legitimate expectation) and/or the EU Charter of Fundamental Rights.

The CAT dismissed these arguments, largely on the basis that the new collective proceedings regime, while being a new form of procedure, does not establish a new cause of action (the claimants could previously have brought their claims, albeit on an individual basis). The CAT also held that Pride’s legitimate expectations were not breached when it decided not to appeal the OFT decision, as while no collective proceedings existed in UK law at the time, the new regime was foreseeable at that point, having been published as a bill and read in Parliament by the time of the OFT decision.

Whether to grant a CPO

The CAT considered whether it should grant the Application on the basis of the criteria in the CRA and the CAT Rules 2015. In evaluating the Applicant’s proposed subclasses, to determine whether the potential claimants’ damages claims raised common issues (one of the requirements for class certification), the CAT considered, among other things, expert economic reports from both parties and oral evidence from the Applicant’s expert.

The application for a CPO was, in the CAT’s own words “… not a mini trial, and the essential question is whether the Applicant has established a sufficiently sound and proper basis to proceed, having regard to the statutory criteria”. The CAT also contrasted the UK and U.S. approaches to class certification, noting that the UK regime is intended to proceed to class certification “with either no or only very limited disclosure and shorter hearings held within months of the claim form being served”.

However, the CAT still considered it necessary to consider complex economic arguments before granting a CPO. The CAT considered that “appropriate guidance” could be derived from the position in Canada, which has held that economic evidence is required in order to establish the commonality of loss to the class members which must “offer a realistic prospect of establishing loss on a class-wide basis… The methodology cannot be purely theoretical or hypothetical, and must be grounded in the facts of the particular case in question. There must be some evidence of the availability of the data to which the methodology is to be applied”.

The CAT concluded that the Applicant’s proposed class structure would allow the Applicant to claim damages beyond the scope of the OFT decision on which the claims relied (the Applicant was unable to claim any infringement beyond the scope of the OFT decision due to limitation issues). The OFT decision found that Pride entered into anti-competitive agreements in relation to online price advertising restrictions with ‘Relevant Retailers’ in relation to ‘Relevant Models’ of mobility scooter. The CAT held that the Applicant’s proposed sub-classes did not distinguish between customers who had purchased from Relevant Retailers and customers who had purchased from other Pride retailers, whose prices may well have been influenced by the online price advertising restrictions, but who had not themselves been found by the OFT to have entered into any anti-competitive agreement with Pride.

Accordingly the CAT adjourned the application to permit the Applicant to re-formulate her definition of sub-classes of claimants and to provide further expert economic evidence in support.

While this may be seen as a victory for Pride and may make other potential claimant representatives hesitate before starting collective proceedings, it should be noted that the CAT found against Pride on a number of other important points, including:

- Pride strongly resisted the adjournment to allow the Applicant to reformulate her case, arguing that the Applicant had had ample time to prepare her claim and that there was no realistic prospect of the Applicant formulating her case in a way that was suitable for an aggregate award of damages. The CAT rejected those arguments, holding that the Applicant should be allowed the opportunity to reformulate her case;

- the CAT held that, if the issues with the proposed class discussed above can be overcome, then the case would be suitable for class certification on an opt-out basis “the CAT held that, if the issues with the proposed class discussed above can be overcome, then the case would be suitable for class certification on an opt-out basis “given the size of the class, the fact that the class members are individual consumers, and the estimated amount that each represented class member could recover”; and

- the CAT held that it would be just and reasonable for Ms Gibson to act as the class representative, dismissing Pride’s arguments that she was unsuitable and dismissing at this stage Pride’s arguments in relation to her ability to potentially pay Pride’s costs.

Comment

This is the first guidance as to how the CAT will interpret the statutory requirements for granting a CPO. This case was seen by many as a relatively straightforward test case of the new class action regime, involving an established infringement by the Respondent, a relatively unsophisticated product, a proposed class of vulnerable consumer claimants, and a relatively low level of claimed damages (approximately GBP 3 million).

However, the judgment demonstrates that the CAT, while keen to encourage an effective mechanism for collective redress for consumers, will scrutinise the plausibility of the expert methodology used to demonstrate the commonality and viability of the claims. The numerous factors which the CAT has to weigh before making a CPO show that potential class action claimants will have to be very diligent in preparing their claim. The CAT has said that Ms Gibson’s amended claim must address not only questions of quantification, but also of causation and that the revised claim may still face “considerable difficulties”. Even once the Applicant has reformulated her case, the CAT has said that it may need to further consider the suitability of this case for collective proceedings, depending on the revised assessment of likely costs and damages.