PRIVATE ACTIONS: The CRA 2015 giveth; and the 2015 CAT Rules taketh away


Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition law infringers up and down the land[1] must be rubbing their hands in glee at the transitional provisions contained in Rule 119 of the Competition Appeal Tribunal Rules 2015 (“the 2015 CAT Rules” or the “New Rules”).[2]

The glee stems from the fact that these transitional provisions are very broad in temporal and material scope and yet very narrow in terms of gateway they provide into the new promised lands of flexible standalone claims,[3] and of collective redress leading to effective enforcement of private damages claims.   The problem, in essence is this: these transitional rules set in aspic for an unnecessarily long time the old CAT regime and all its manifest defects, defects which were the express cause for reform in the first place. Continue reading

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When should a decision be remitted to a different decision-maker?

The Court of Appeal’s answer to this question in HCA International Limited v CMA [2015] EWCA Civ 492  was, in effect: rarely. The judgment, which contains some serious criticism of the CMA even though it won the case, illustrates just how high the threshold is before a court will insist that a remitted decision should go to a new decision-maker. It is not enough for the original decision-maker to have made a mistake, however conspicuous. Rather, there needs to be a reasonable perception of unfairness or damage to public confidence in the regulatory process.

The background was the CMA’s private healthcare market investigation, which determined that HCA should divest itself of two hospitals in central London. That decision was premised in part on the CMA’s insured price analysis (“IPA”), which HCA argued (on an appeal to the Competition Appeal Tribunal) contained serious flaws. The CMA eventually accepted that its divestment decision should be quashed, and the CAT held that the matter should be remitted to the original CMA inquiry group for re-determination. Continue reading

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Arcadia v Visa revisited: the Court of Appeal takes a strict approach to limitation

Competition damages claims can be notoriously complex. According to the Court of Appeal, however, that is no reason to free them from the ordinary English rules of limitation – however strict those rules might be.

Unlike the large majority of European limitation rules, where time starts running from the date of the victim’s knowledge, the English rule under the Limitation Act 1980 (“LA 1980”) is that time starts running from the moment the wrong is done, unless the victim can show that the wrong was concealed from him. The claimants in Arcadia Group Brands Ltd & Ors v Visa Inc & Ors [2015] EWCA Civ 883 argued that various relevant facts had been concealed. Ultimately, their difficulty was that they did have sufficient facts available to them to plead their case. Continue reading

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Jurisdiction in competition damages actions: a first word from the CJEU

C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide was the CJEU’s first judgment on the application of the Brussels I Regulation (44/2001) to competition damages claims. The case fell to be decided in the context of the EU’s various new measures to encourage private enforcement. The Advocate General was not convinced that this policy focus could be reflected in Brussels I – he considered that the Regulation was “not fully geared towards ensuring effective private implementation of the Union’s competition law” (at [8]). However, the CJEU embraced the challenge, and provided an interpretation of Brussels I that will do much to encourage private enforcement. Continue reading

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Asset acquisitions revisited

Earlier this year, I suggested that the law on when an asset acquisition might amount to a merger was somewhat opaque. The Court of Appeal’s decision in Eurotunnel II [2015] EWCA Civ 487 has brought some additional clarity, although the messy procedural history of that case has caused its own problems.

A quick re-cap on the background. Cross-channel ferry company SeaFrance went into liquidation in 2011. It could not be sold as a going concern, and there was instead an asset sale. Eurotunnel bought three ferries and various other assets.

The OFT (now the CMA) decided to investigate whether the acquisition was a merger. The basic question under the Enterprise Act was whether Eurotunnel had acquired “the activities, or part of the activities” of SeaFrance.

At the risk of stating the obvious, an asset is not an activity. However, there were some features of the asset sale – including the fact that the vessels were maintained ready to sail at short notice, and that a deal had been done to incentivize the re-recruitment of SeaFrance’s staff by any new owner – which the OFT considered meant that the relevant “activities” had been acquired. Continue reading

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Of Megabytes and Men: the private use exception under the judicial lens and lessons for state aid claims

On 19 June 2015, the High Court allowed a claim for judicial review against the decision to introduce a narrow ‘private copying’ exception to the Copyright, Designs and Patents Act 1988 (the “CDPA 1988”). The decision is of interest to EU and competition lawyers for two reasons: (1) its examination of the standard of review in public law cases with an EU law dimension and also (2) its analysis of the state aid issues which were raised. Continue reading

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Settling cartel damages actions: contribution defendants beware

Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights some of the problems. Continue reading

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Filed under Agreements, Policy