On 22 December 2015, the Competition Appeal Tribunal (the “CAT”) announced the commencement of two damages actions which, according to its website, are only the second and third claims issued in the CAT since 1 October, when the Consumer Rights Act 2015 came into force seismically changing private actions for breach of competition law.
One of the CAT’s Notices relates to an action by nine Claimants including Peugeot Citroën and Saab entities against two Pilkington entities for damages pursuant to the automotive glass cartel.
The other Notice relates to a claim by NCRQ Ltd. against the Institution of Occupational Safety & Health, and is interesting because it announces an application by the Claimant for fast track designation.
The fast track was introduced on 1 October, primarily for the benefit of SMEs, and it imposes a very tight time constraint. CAT Rule 58 requires the trial to commence within six months of the Order placing the claim on the fast track.
The substance of the case is that:
- NCRQ has developed a Diploma in Applied Health & Safety, including training materials and courses;
- the Defendant is an organisation established by Royal Charter; and
- NCRQ is applying for an injunction to prevent an alleged abuse of dominance by the Defendant in its refusal to accredit the diploma.
It was widely anticipated that the fast track would be used mainly for injunctions, and particularly injunctions to stop abuse of dominance:
- injunctions because the time constraint would appear to make most damages claims impractical and;
- abuse of dominance because:
- (in the case of follow-on actions) if anticompetitive collusion has been established by a regulator, it will almost certainly have stopped without the need for an injunction; and
- (in the case of standalone actions) if such collusion has not been established, it probably cannot be proven within a six month process as it is almost always concealed.
On that basis, the fast track is a well-targeted measure, as injunctions can be more important than damages to an embryonic SME whose existence is threatened by a dominant competitor.
On the limited information publicly available, NCRQ’s claim appears to have many of the anticipated traits. The company was incorporated on 30 May 2014 and the lack of accreditation appears to undermine its main product. According to its website, the diploma is a 400 hour course, and its only other products are two 140 hour certification courses.
However, interestingly, NCRQ also claims damages, and the action is against a Defendant with no obvious commercial incentive to abuse its dominance. It is therefore unclear the extent to which the damages claim, and indeed the entire action, are primarily intended to pressurise the Defendant to cooperate in finding a way to accredit the diploma. It will be interesting to see if the case settles.
The Notice was accompanied by a Consent Order, also dated 22 December, setting a timetable for the Claimant’s application for an interim injunction.
It appears that no Order has yet been made designating the claim for the fast track, but the timetable for the interim application is very tight nonetheless. The Defendant’s evidence in opposition to the injunction was due on 4 January, the first working day of the year; the Claimant’s reply evidence is due on 6 January; and the hearing is on 12 January.