Author Archives: Tristan Jones

About Tristan Jones

Barrister at Blackstone Chambers.

Collective Actions: loss in complex cases

The big news from last week’s UK announcement on reforming private competition enforcement is that the government plans to introduce opt-out class actions for competition claims.

The proposals incorporate various “safeguards” designed to ensure that the perceived excesses of US class actions do not become a problem here. Some of the safeguards are really no more than statements of the obvious – no-one can be surprised that we will not have US-style triple damages, or that law firms won’t be able to bring a claim without even having a claimant. On the other hand, some safeguards – such as the prohibition on contingency fees – will surely serve to limit the usefulness of UK class actions.

Financing aside, the big unanswered question is how attractive claimants will find such class actions (or “collective actions”, as the government prefers to call them, emphasising the differences with the US). Continue reading

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Competition round-up: January 2013

As today is the first day of the new court term, I thought it would be a good moment for a round-up of last term’s competition cases – and, of course, the customary plug of our own blogs.

If there was a theme to the Michaelmas term, it was the highs and lows of follow-on claims. Few pieces of legislation can have attracted so much judicial attention in so short a time as s.47A of the Competition Act 1998. It has now gone as far as the Supreme Court, which confirmed in BCL Old Company Ltd v BASF plc [2012] UKSC 45 that the rules governing limitation periods for bringing follow on claims in the CAT are not so unpredictable as to breach European principles of legal certainty (a topic which I blogged on here). Continue reading

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Filed under Abuse, Agreements, Damages, Penalties, Pharmaceuticals, Policy, Procedure, Round-Up, Telecoms

Tesco scores partial victory in cheese cartel

In a judgment handed down this afternoon, the Competition Appeal Tribunal largely upheld Tesco’s appeal against the OFT’s decision that it had participated in unlawful agreements relating to the price of cheese: see Tesco Stores Ltd v Office of Fair Trading [2012] CAT 31.

Tesco’s victory is essentially on the facts: it persuaded the CAT that the OFT had misunderstood the evidence. The case is therefore yet another example of the facts of a case appearing very different when placed under forensic examination before the Competition Appeal Tribunal than they did when considered by the regulator (other recent examples are the tobacco litigation and the BSkyB case).

The OFT is plainly keen to strengthen the quality of its decisions. It has recently revised its Competition Act procedures guidance with precisely that goal in mind. It will therefore want to examine this latest judgment to see whether any further steps should be considered. Two points stand out. Continue reading

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BCL No.2: The Supreme Court addresses time limits in follow-on claims

The White Paper which first proposed follow-on damages claims promised a “swift” and “streamlined” procedure. The idea was that when a regulator had made an infringement finding, there would be a simple way for victims to claim damages without having to prove the infringement afresh.

In reality, however, many follow-on actions have been bogged down by procedural skirmishes. The Court of Appeal has ruled on the need for the facts alleged in a follow-on claim to be part of the infringement actually found. It has ruled on the extent to which findings of fact in an infringement decision are binding in the follow-on action.

And it has on three occasions turned its attention to the time limits for bringing follow-on claims in the Competition Appeal Tribunal. Continue reading

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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

Supreme Court puts brake on “Euro defences”

The UK Supreme Court has given trade mark proprietors reason to celebrate, in a judgment which is likely to have important consequences for the success of “Euro defences” more broadly.

See: Oracle America Inc (formerly Sun Microsystems Inc) v M-Tech Data Limited [2012] UKSC 27.

From the point of view of trade mark law, the case’s main significance is that it emphasises the right of trade mark proprietors to control the initial entry onto the EEA market of any trademarked goods (see Article 5 of the Trade Mark Directive). M-Tech, which had imported and tried to sell Sun trademarked goods without Sun’s consent, argued in its defence that Sun’s attempts to enforce its trade mark rights were part of a broader scheme to partition the EEA market, and were therefore contrary to the free movement of goods provisions at Articles 34 to 36 TFEU. Continue reading

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Ex ante and ex post regulation following Telefónica

Hats off to Spain for having the nerve to suggest that it might have been a better target for the Commission’s attention than Telefónica, the former monopoly telecoms provider recently fined over €150 million for committing a margin squeeze in the Spanish broadband market (see case T-398/07 Kingdom of Spain v Commission).

The case is the latest in a line which tests the boundary between ex ante regulation (obligations imposed on particular undertakings by national regulatory bodies) and ex post competition law (in this case, the general prohibition against abuse of dominance). Continue reading

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