Merger litigation: more recent developments

This chapter focuses on the rights of third parties to intervene in competition proceedings in the High Court (and appellate courts) and in the Competition Appeal Tribunal (CAT). It first considers intervention by third parties in the High Court under Rule 19.2 of the Civil Procedure Rules 1998 (CPR), intervention in judicial review proceedings, and intervention in appeal proceedings. It then discusses intervention in CAT, placing emphasis on appeals and reviews (applying for permission to intervene, the time limit for making an application to intervene, the role played by intervener at the hearing). It also explains how compensation claims are made under CAT rule 16 before concluding with an analysis of intervention by competition authorities, namely the Competition and Markets Authority (CMA) and the European Union Commission.

This chapter deals with the funding of competition litigation and the rules and principles that govern the recoverability of costs in competition cases. It first considers the different types of funding a competition case, namely ‘after the event insurance’ (ATE), conditional fee arrangements (CFAs), and damages-based agreements (DBAs). It then examines funding for collective actions in the High Court and in the Competition Appeal Tribunal (CAT), voluntary redress schemes, and how competition litigation costs are controlled and assessed in the High Court and in the CAT. Cost orders against non-parties are also discussed, before the chapter concludes with an analysis of offers to settle in the High Court and in the CAT.

The UK introduced a new regime for opt-out ‘class’ or collective actions in 2015. These require certification before they proceed to trial to establish whether the members of the class have sufficient ‘common interest’. The certification of the first two collective actions – Gibson v. Pride Mobility Products and Merricks v. Mastercard – were dismissed by the Competition Appeal Tribunal (CAT). Here a critical assessment of the UK’s emerging collective certification process is undertaken focusing on the determination of common issues, pass on, distribution of damages, costs and funding. It is argued that the CAT has applied the test for certification too strictly and not in accordance with the case law surrounding the ‘Canadian model’ on which the UK certification procedure is based; and incorrectly treated the award of aggregate damages as the summation of individual damages. The way the CAT has handled these two factors threatens to undermine the purpose and effectiveness of the UK’s new collective action regime.

On 1 October 2015, a sea change in English civil procedure occurred, when the UK’s first opt-out class action regime took effect. Its drafting choices occurred against a backdrop of considerable comparative jurisprudence from Australia, Canada and the United States. For example, the regime’s flexible standing provisions avoid difficulties that have arisen in class action regimes in other jurisdictions, by enabling a class action to be brought either by a directly affected class member as representative or by a suitable representative who has no cause of action. On the other hand, the preliminary merits criteria which the class representative will need to prove are far-reaching and more onerous than those implemented elsewhere. In the first certification decision delivered under the regime—a moment of history created on 31 March 2017—the Competition Appeal Tribunal has made it plain that comparative insights will be highly relevant. This article analyses that milestone event, by examining this first decision in light of the drafting choices made under the UK regime, whilst also suggesting further ways in which comparative law may be helpful on key interpretive words and phraseology in cases to come.

Collective Certification in UK Competition Law Commonality, Costs and Funding

Defendants in private competition claims have typically relied on individually appointed economic experts. However, the Competition Appeal Tribunal’s 2023 judgment in Stellantis v. Autoliv marked the first instance where all defendants were required to share a single economic expert. This article examines the evolution of expert evidence in English civil litigation, the case management of economic evidence in competition cases, and the implications of the Tribunal’s and Court of Appeal’s rulings on single joint experts. The article concludes by assessing the broader impact of this shift on multi-defendant (and multi-claimant) claims, including collective proceedings.

The Competition Appeal Tribunal was established as an independent institution in April 2003 under section 12 and Schedule 2 of the Enterprise Act 2002. It assumed the functions of the Appeal Tribunals of the Competition Commission, which had themselves been established under the Competition Act 1998. In addition, the Tribunal was awarded new powers of statutory review over merger control decisions. The institutional separation achieved reflects the perceived need for a degree of independence to allow the Tribunal to hear challenges to decisions of the Competition Commission.

The past year has seen contrasting decisions in the English and German courts regarding access to leniency materials, with the English courts proving to be a more claimant friendly forum in this regard. In the UK, the Government has proposed several reforms meant to improve private actions, including the introduction of an opt-out class action system. Almost 10 years since its inception, the UK's Competition Appeal Tribunal has issued a first damages award—an award including exemplary damages and paving the way for similar claims against defendants who have not been fined by competition authorities.

Chapter 5 provides a detailed and comprehensive description and analysis of the major exploitative abuses cases considered by the English courts and competition and regulatory authorities since the inception of the Competition Act 1998, including the High Court, the Competition Appeal Tribunal, and the Court of Appeal. This decisional practice and case law have been widely cited and adopted by the EU Courts in Advocate General opinions and in the judgments and opinions of overseas authorities and courts. The chapter also contains a critique of the case law and decisional practice and highlights important practical points and points of principle that have received insufficient (or no) attention, as well as issues on which the case law and decisional practice are arguably wrong. This analysis is timely, since it is clear that the topic of exploitative abuse remains an important one for the UK competition authorities, regulators, and courts, perhaps even more so than authorities and courts in EU Member States.

This chapter examines the use of factual evidence in cases involving a breach of competition rules. Potential sources of factual evidence range from the evidence of witnesses to statements of case and application notices supported by a statement of truth, contemporaneous documents, affidavits, and the admissions of other parties to the alleged anti-competitive agreement or concerted practice. The chapter first provides an overview of factual evidence used in High Court proceedings, including witness evidence and sources other than witness statements, as well as the formal requirements for witness statements. It then explores issues such as confidentiality, hearsay notices, witness summaries and summons, video links, depositions, and letters of request. It also discusses the use of factual evidence in Competition Appeal Tribunal (CAT) proceedings, focusing on issues such as admissibility and the admission or exclusion of fresh evidence.

"Elphick, Dr Clive Harry, (born 24 Nov. 1956), Independent Director: National Grid Gas plc, since 2014; National Grid Electricity Transmission plc, since 2014" published on by Oxford University Press.

A Short Note on the Smith Commission: Proposals to Devolve Broadcasting and Telecommunications to Scotland

In most jurisdictions, antitrust fines are based on affected commerce rather than on collusive profits, and in some others, caps on fines are introduced based on total firm sales rather than on affected commerce. We uncover a number of distortions that these policies generate, propose simple models to characterise their comparative static properties and quantify them with simulations based on market data. We conclude by discussing the obvious need to depart from these distortive rules of thumb that appear to have the potential to substantially reduce social welfare. How competition authorities (CAs) should set fines and how they actually do so in practice is a highly debated issue among antitrust practitioners. In Europe, where fines are often set directly by the CAs, appeal courts have often slashed CAs’ decisions precisely on the grounds of how they set the fines. An illuminating example is the UK Competition Appeal Tribunal (CAT) decision in 2011 to cut the fines set by the Office of Fair Trading (OFT) for members of the construction recruitment cartel substantially, on the grounds that the ‘wrong’ measure of affected commerce was used.

To Editor.— The recent article by Porter and Jick on drug-related deaths (237:879, 1977) and related editorial by de Jong (237:898, 1977) require some additional comment and, perhaps, a modified perspective. In article is ample documentation that five patients died of pulmonary edema out of 7,783 exposed to intravenous (IV) administration. This is not inconsistent with earlier article 1 in which there were reported four deaths in 2,048 exposed. In earlier article four who died were aged 48, 60, 63, and 72 years (median age, over 60 years), while in present article, which reported a lower incidence, ages were generally lower: 17, 41, 45, 46, and 84 years (median age of 45 years). In editorial de Jong correctly points out that IV-related deaths were not due to a drug but more probably to the mode of administration (ie, too much,

Since the mid 1990's, e-business and electronic communication have spread rapidly and widely throughout the United States. According to one study, the majority of the U.S. population, fifty-four percent, used the Internet in September 2001, up twenty-six percent from the year before. Companies are targeting their e-business efforts to reach this expanding customer base. By entering the world of e-business, companies can benefit from lower transaction costs, improvement in the time to take products to market, cost savings in inventory and supply chain reduction, improved communications, and the ability to outsource organizational tasks such as payroll and customer-relations management. Cost savings and easy access for both online businesses and consumers depend on the ability of such online businesses to collect, store, transfer, and analyze vast amounts of data. As more and more business is conducted online, electronic security has become more of a concern. In 2001 alone, $380 million was lost due to breaches in electronic security. While terrorist attacks and financial fraud should motivate companies to carefully consider their information security, recent developments in the law require some companies to safeguard certain types of consumer information. Additionally, Internet users appear concerned about disclosing personal identifying information. According to a recent study, eightynine percent of Internet users are worried that companies may sell their private information, and eighty-one percent of Internet users who seek health information want the right to sue an online web company for violations of their privacy policies. Companies that wish to collect and use such data need to consider what steps they can take to reassure customers and to overcome their fears. The implementation of adequate security measures may improve consumer confidence. According to one survey conducted by Cyber Dialogue, retailers lost $6.2 billion in sales in 2001 from consumers concerned about the privacy of their information. The focus of this Article is on legal requirements for the implementation of security safeguards to protect the privacy of information.