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Expert Evidence in the CAT: The New Landscape
The CAT’s new Practice Direction on Expert Evidence provides very helpful guidance on what the CAT expects of experts. It covers a wide range of topics including how experts should work with each other and the Tribunal. However, two aspects of the new guidance are likely to have a particularly significant practical impact. In short, Continue reading
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Boundary Fares: the boundaries of fairness
In Boundary Fares [2025] CAT 64 the Tribunal dismissed Mr Gutmann’s claims that rail companies had abused their dominant positions by failing to make boundary fares sufficiently available or promote awareness of them. The decision contains important analysis about the overlap of consumer and competition law, but the reasoning is nuanced and it does not Continue reading
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Kent v Apple: Collective actions and the future of platform competition
The Competition Appeal Tribunal’s decision in Kent v Apple is an important landmark in the approach of UK courts to competition within tech ecosystems, showing how traditional tools can be used to police digital walled gardens. The decision is also very timely. Just as the government is considering whether recent high-profile disappointments in the collective Continue reading
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No MIFS or buts
The Tribunal’s recent judgment in the interchange proceedings gives important guidance on the use of counterfactuals in competition infringement claims. The Trial 1 judgment in the Merchant Interchange Fee Umbrella Proceedings [2025] CAT 37 was handed down on 27 June (here). The claims initially comprised over 2000 individual claims brought by merchants against Visa and Continue reading
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Beware of the CAT
Has the CAT turned full circle in its approach to collective proceedings orders (CPOs)? The short history of the CPO regime starts with the unsuccessful first application back in 2017 followed shortly afterwards by the Supreme Court’s very applicant-friendly 2020 decision in Merricks v Mastercard (see our blog here). But a growing number of decisions Continue reading
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Subsidy Control reviews: what can I challenge and where do I issue?
In what is rapidly turning into an unintended mini-series, the theme of this blog is again subsidy control reviews under s. 70 of the Subsidy Control Act 2022 (SCA) (see previous posts here and here). This post deals with some unusual features of s. 70, which will throw up tricky threshold questions for many appellants, Continue reading
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Subsidy Control reviews: a cheap and cheerful jurisdiction?
A few weeks ago, the Competition Bulletin blogged on the standard of review that was likely to apply in subsidy control reviews conducted by the CAT under the Subsidy Control Act 2022 (SCA). This blog covers the procedural approach that the CAT seems likely to adopt. In short, early indications are that the watchwords will Continue reading
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Regulating Big Tech in the UK
Following hot(ish) on the heels of the EU’s Digital Markets Act, the UK’s Digital Markets, Competition and Consumers Bill (“the Bill”) was published on 25 April 2023. It seeks to do three things: (1) to establish a new ex-ante regulatory regime for digital markets, conferring powers on the CMA, via its Digital Markets Unit, to Continue reading
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The Trouble with Economists
The Competition Appeal Tribunal’s recent decision in the trucks cartel claim raises some serious questions about expert economic evidence. In this post I want to flesh out some of the challenges and then float some suggestions for improvements. The context Many readers will know the basic background. Back in 2016, the European Commission decided that Continue reading
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Subsidy Control reviews: proportionality with a light touch
As erstwhile State aid lawyers will know, under the UK’s new subsidy control regime, interested parties can challenge subsidy decisions in the CAT, which will apply the same principles applied by the High Court in a judicial review. But what standard of review will the CAT adopt when examining a substantive subsidy decision? The recent Continue reading
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Collective Actions in the Supreme Court
The big news from today’s UK Supreme Court collective action decision in Mastercard v Merricks [2020] UKSC 51 is not only that Mr Merricks won and defeated the appeal, but that the Supreme Court approached the issues in a far more claimant-friendly way than even the Court of Appeal had done. The headlines are that, Continue reading
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The Supreme Court’s decision in Unwired Planet – what comes next?
Introduction The UK Supreme Court has handed down its long-awaited judgment in Unwired Planet. Its decision has profound implications for patent owners and implementers alike and is likely to lead to heavily contested jurisdictional disputes going forward. These joined appeals concern Standard Essential Patents, or “SEPs”: a patent which the owner has declared to be essential Continue reading
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Crisis cartels: relying on Article 101(3) in a pandemic
Brian Kennelly QC and Tom Coates examine how businesses might invoke Article 101(3) to justify collaboration during the pandemic. The coronavirus pandemic has prompted some slackening of competition rules, but not much. Competition authorities, including the Commission and the CMA, have indicated that they are unlikely to take issue with coordination between providers of critical Continue reading
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Litigation in the shadow of COVID-19
Readers of this blog may be interested to know that Blackstone Chambers has set up a dedicated webpage providing legal insights into COVID-19. In the most recent article, Credit When Credit Won’t Do, Kieron Beal QC and Tom Mountford consider the prospects of group litigation being used to help consumers whose holiday plans have been Continue reading
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Coronavirus and the EU State Aid Framework
The coronavirus pandemic has ushered in an era of government spending on a scale not seen since the financial crisis. The Chancellor has so far announced £330bn of financial support in the coronavirus business interruption loan scheme and further support for the self-employed. With some squeezed industries such as aviation clamouring for help, many predict Continue reading
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Merricks v MasterCard: Collective Actions Reinvigorated
The Court of Appeal today gave its much-anticipated judgment in the application to bring collective proceedings against MasterCard: see Merricks v MasterCard Incorporated and others [2019] EWCA Civ 674. It is a major victory for the Applicant and will reinvigorate the collective proceedings regime, which has seen disappointingly few cases brought since its introduction in 2015. Continue reading
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A warning before bringing an appeal to the CAT? Costs after the BCMR decision
The Court of Appeal’s judgment in the recent BCMR costs case is a stark warning to all those considering challenging a regulatory decision in the Competition Appeal Tribunal: even if you win, you may still face a big costs bill. See British Telecommunications plc v Office of Communications [2018] EWCA Civ 2542. Unlike the position Continue reading
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Retrospective interpretation: DSG v MasterCard
The latest battle over limitation in Competition damages claims was a victory for the claimants – see DSG Retail Ltd v MasterCard Inc [2019] CAT 5. In some ways it is a surprising decision, because the Competition Appeal Tribunal has decided that when s.47A of the Competition Act was enacted in 2003, certain claims which were time-barred Continue reading
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Jurisdiction after a no deal Brexit
Time for some more speculation about the future which awaits us after 29 March. The topic this time is jurisdiction. As the readers of this blog will know, the rules of civil jurisdiction across the EU are currently governed by the Brussels Recast regulation. The basic framework is: A defendant domiciled in a Member State Continue reading
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Subsidiarity liability: Biogaran
I wrote a blog a few months ago on the circumstances in which a subsidiary can be held liable for the infringing conduct of its parent. That is a somewhat special interest subject which might be said to have received more than its fair share of attention among English judges and lawyers. However, I cannot resist Continue reading
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Anchoring claims to a UK subsidiary
The recent decision of the High Court in Vattenfall AB v Prysmian SpA [2018] EWHC 1694 (Ch) is another example of claimants being allowed to use non-addressee English subsidiaries as anchor defendants for their competition damages claims. It is also another example of the court considering but not actually having to decide the interesting legal Continue reading
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Applicable law in competition infringements: Deutsche Bahn
The recent judgment of Barling J in Deutsche Bahn AG v MasterCard offers important guidance on determining applicable law in competition actions. Practitioners dealing with competition infringements which stretch back prior to the entry into force of Rome II in 2009 should take note – particularly when dealing with limitation issues, which are governed by Continue reading
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Market dynamics in the counterfactual: more competitive, not just cheaper
The judgment of Phillips J in Sainsbury’s v Visa [2017] EWHC 3047 (Comm) demonstrates the importance to claimants in competition damages cases of identifying a counterfactual which not only involves lower prices but also involves higher levels of competition. Sainsbury’s case Visa’s payment card scheme required ‘acquirers’ (who process card payments on behalf on merchants) Continue reading
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Intel Corporation Inc v European Commission
In its recent judgment in Intel, the Grand Chamber shed valuable light on the “qualified effects test” for jurisdiction and on the room for loyalty rebates to be compatible with competition law. Background Intel designed computer processors and sold them to original equipment manufacturers (“OEMs”) to use in central processing units (“CPUs”). One of its Continue reading
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Collective (in)action? The CAT’s recent judgments on collective proceedings orders
At first glance, two recent judgments from the CAT may give the impression that the new UK class action regime is dead in the water. However, on closer inspection there is much in these judgments that prospective claimants will welcome. The first decision was in the Pride mobility scooters case (see Tom Coates’ blog here). Continue reading
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Brexit and implications for UK Merger Control – Part 3/3: Managing and prioritising the CMA’s mergers workload
The Competition Bulletin is pleased to welcome the third in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. Part one focused on the issues associated Continue reading
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Illegal counterfactuals: the Court of Appeal shuts the back door
Suppose a defendant to a competition claim runs a defence that, in the counterfactual world in which no anticompetitive conduct occurred, pricing would have been no different; and that the claimant replies, “maybe so, but only because you were at the same time operating some independent anti-competitive scheme, which must also be purged from the Continue reading
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Collective Proceedings in the CAT: mobility scooters roll on for now
Last Friday the CAT handed down a judgment on the first ever-application for a collective proceedings order under the new regime introduced by the Consumer Rights Act 2015. The judgment will generally be welcomed by potential claimants, but it has a sting in the tail which may cause serious difficulties for class actions in other Continue reading
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When is an antitrust/competition claim caught by an arbitration clause? The Microsoft Mobile decision
The decision of the High Court in Microsoft Mobile Oy (Ltd) v Sony offers some helpful guidance as to when a competition law tort claim will be caught by an arbitration clause in a sale or supply agreement. Competition law claims frequently complain about prices, on ground of collusion or abuse. Those prices may already Continue reading
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Brexit and implications for UK Merger Control – Part 2/3: Implications for the CMA’s workload and what not to do
The Competition Bulletin is pleased to welcome the second in a three-part series of blogs on Brexit and merger control by Ben Forbes and Mat Hughes of AlixPartners. Ben and Mat are (with others) co-authors of the new Sweet & Maxwell book, “UK Merger Control: Law and Practice”. Part one focused on the voluntary nature Continue reading
