Monthly Archives: September 2012

OFT welcomes DBIS proposals for reforms in private enforcement of competition law

Many readers will now be familiar with the proposals for the reform of private competition claims launched by the Department for Business Innovation and Skills (‘DBIS’) in April 2012 (‘Private actions in competition law: A consultation on options for reform’). Published at the end of July 2012 when most people had better things to do, the OFT’s Response has generated less attention. It nonetheless provides a general endorsement of the DBIS proposals.

The OFT has noted that one of the key barriers to collective actions to date has been the low take up by claimants where the prospective recovery for each individual is modest. The OFT has therefore strongly supported the suggested introduction of an “opt-out” regime for collective actions, subject to certain caveats. First, the OFT recognises that appropriate safeguards need to be built into any scheme to dissuade abusive litigation. It recommends a strong court certification procedure to oversee the appointment of the representative body and retention in principle of the normal costs’ rules. Secondly, it is lukewarm about the DBIS proposal for all such actions to be heard in the CAT in the first instance. One senses that resource constraints in relation to the CAT are a driver of this reaction. But a proposed concurrent jurisdiction with the High Court is also accompanied by the suggested removal of the jurisdictional limitations on section 47A claims in the CAT. Few can doubt that such a proposal would be sensible. The Enron experience has successfully deterred claimants from commencing follow-on claims in the CAT. Thirdly, the OFT has cautiously welcomed the conferral of a power on the CAT to grant interim injunctions, but favours retaining in principle the need for a cross-undertaking in damages. Fourthly, the OFT has pointed out that expansion of the CAT’s jurisdiction will require synchronisation of applicable limitation periods in civil actions. Continue reading

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Filed under Policy

Special pleading? Toshiba Carrier and the industrial tubes cartel

The Court of Appeal’s judgment last Friday in KME Yorkshire Ltd & ors v Toshiba Carrier UK Ltd & ors [2012] EWCA Civ 1990 will gladden the hearts of Article 101 damages claimants.  It confirms that the Court will be generous in assessing the adequacy of a claimant’s pleaded case – at least where a Commission decision has already established the existence of a cartel.

By a Decision dated 16 December 2003, the Commission found that three manufacturers of industrial copper tubes had between 1988 and 2001 operated a price-fixing and market-sharing cartel under cover of a trade association. Continue reading

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Filed under Agreements, Damages, Procedure

Competition round-up: Summer 2012

As most of us are now returned from our summer holidays, I thought I’d take advantage of the ‘back to school’ feeling with a round-up of the most significant competition cases since Easter. This also provides a good excuse to highlight the best blogs from the Competition Bulletin’s first couple of months.

I’ll start with a case that should, but probably won’t, make the law reports: the decision of the Appeal Panel of the Rugby Football Union, which held in an appeal by London Welsh that the RFU rules on primacy of tenure are contrary to Articles 101 and 102 TFEU and therefore void. The case is notable not only for the finding itself, but also because it was heard and decided so quickly – arguments which would take days in the High Court (and probably weeks in the CAT) were heard over the course of a day, and the 38-page judgment completed the following day. James Segan blogged on the case here.

There has been much good news for claimants in follow-on damages claims. Continue reading

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Filed under Abuse, Agreements, Damages, Free movement, IP, Mergers, Penalties, Procedure, Round-Up, Telecoms

Regulating charges for special police services

Police services are generally performed for the benefit of the public at large and provided for out of public funds. However, the police also have the power (under s.25 of the Police Act 1996) to provide “special police services” for which they can levy a charge. To take Northumbria Police as an example, charges can range from £57.98 per hour for a constable to £90.68 for a superintendent.

The principal line of defence against such a charge is typically to argue that the service is an ordinary police service, rather than a special service. Such an argument succeeded in the recent case of Leeds United Football Club Ltd v The Chief Constable of West Yorkshire Police [2012] EWHC 2113 (QB), in which Mr Justice Eady held that even if the need for police services arises from a private event, that policing does not constitute a special service when it is performed on land that is not owned, leased or controlled by the event organiser.

A further line of defence, potentially of much broader interest, is to attack the level of the charges on the grounds that they are contrary to competition law. That was the stance taken by Wigan Athletic FC in an earlier case against Greater Manchester Police ([2007] EWHC 3095 (Ch)). The issue was not, however, resolved, and the applicability of competition law to special police services therefore remains an open question. Continue reading

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Filed under Abuse