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 shut the door on similar claims in future. There are also practical lessons about the need for class representatives to put their best foot forward in evidence, and options for defendants if they don’t do so.
In my view, three key points emerge.
The first point (and the one which has grabbed most headlines) is that the Tribunal made it clear that “competition law is not a general law of consumer protection” and that the prohibition on abuse of dominance “does not create an obligation on the dominant company to organise or conduct its business so as to achieve the best outcome for its customers”: [79]-[80].
This is doubtless an important clarification and one which will be justifiably welcomed by defendants facing claims which push the boundaries of the traditional heads of abuse. However, the Tribunal’s comments should be read in context. They were made in response to Mr Gutmann’s argument (leveraging a line of CJEU caselaw about the relevance of GDPR infringements to abuse of dominance) that whether a defendant had breached consumer protection law prohibiting unfair terms could be “a vital clue” to whether an abuse had been committed: [70]. The Tribunal clearly had reservations about the consequences of this argument. These reservations are not hard to understand. On one view, if Mr Gutmann were right, the consequence would be to create a collective proceedings regime in respect of all breaches of consumer law by dominant firms. It is perhaps unsurprising that the Tribunal shied away from that outcome.
The scope of the Tribunal’s point should not be exaggerated, however. The Tribunal did not suggest that Mr Gutmann’s claims so exceeded the traditional heads of abuse that they could never have succeeded. A key aspect of his case was that the defendants did not but should have made boundary fares available online. The Tribunal confessed to having had some concerns about this – and said that there could come a point where this conduct did become abusive: [135]. The Tribunal also seemed to accept that an abuse could have arisen if the defendants’ practices effectively resulted in their unavoidably being paid twice (which they did not on the facts): [90]. This would render their conduct akin to that found to be abusive in Deutsche Post (Joined Cases C-147 & 148/97).
All these points suggest that arguments around the edges of the traditional heads of abuse will continue, albeit perhaps on a narrower basis. The door is not entirely closed wherever there is an overlap with general consumer law.
The second point relates to the evidential burden on class representatives. The Tribunal was critical of what the defendants called an “evidential vacuum” on the class representative’s part in relation to a key aspect of his case (namely, passengers’ awareness of boundary fares).
This raises an important lesson for class representatives. Cases involving claims of unfairness or exploitative abuses will often involve allegations that consumers are somehow misled by dominant firms. Difficult though it may be to gather evidence to this effect from the class, it will probably be very important to try if the allegations are to go anywhere. Surveys are an option, as are industry experts; but relying on the defendants’ disclosure alone may not be enough and risks leaving the Tribunal with a one-sided evidential picture. It is notable that similar points about transparency failed to make much progress in Le Patourel in the absence of much positive evidence from the class representative.
The third point concerns whether the result should lead the Tribunal to revisit the scrutiny to which claims are subject at the certification or pre-trial stages.
It would be reasonable to suggest that a claim which unacceptably strayed beyond the recognised limits of competition law should have been stopped somehow before a lengthy and expensive trial. But the defendants did try to strike out some aspects of the class representative’s case at the certification stage, and failed both before the Tribunal ([2021] CAT 31) and Court of Appeal ([2022] EWCA Civ 1077). The latter was clear that the case advanced by the class representative – which critically alleged that passengers were charged twice in the same way as in Deutsche Post – fell within the scope of existing case law and was arguable. This suggests that the merits of the case were properly tested at the certification stage. The evidence at trial simply did not shake out in the class representative’s favour – and forced him to advance a case which did go beyond the recognised heads of abuse.
Perhaps more difficult to understand is why the case proceeded to trial despite an “evidential vacuum” in relation to a key part of the class representative’s case. The Tribunal has been clear that the class representative must have a blueprint to trial and explain how his or her allegations will be made good. This is an ongoing requirement, rather than one which arises only at the CPO application stage, and essentially a case management issue. Hindsight is surely a dangerous thing – but it might be thought there can have been no proper blueprint where the class representative proposed to lead no factual evidence on a key allegation.
The ultimate lesson is therefore not that all consumer protection-style claims are bound to fail. Rather, class representatives must think carefully about how they can advance their own evidence to make such claims good. And defendants should not be afraid to argue that they should not get a trial if they do not do so.
