One economic expert for multiple defendants: a shift in competition litigation?

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.

Forensic economics experts (FE) working with attorneys engaged in litigation, whether consulting, preparing a report, or testifying at deposition or trial, generally are expected to have some knowledge (1) of the state’s statutory and case law regarding allowable damages and methods; and (2) that certain topics (e.g., taxes, collateral sources) should not be mentioned or considered at certain times since a mistrial could result. This situation creates a tension: forensic economics experts are economics experts and are not attorneys, but nonetheless must have a reasonable understanding of the relevant state law. In this vein, the Journal of Forensic Economics (JFE) continues to publish a series of articles on the ways such damages are calculated in different state jurisdictions, one state at a time.2 The state of South Dakota is included in this issue and this paper adds Illinois to the list. Following the format of previous articles in this JFE series, Section II provides a listing of the controlling statutes, general case law, and court rules. Section III discusses the concept of earning capacity which appears throughout PI and WD case law in Illinois. Section IV discusses discounting to present value. Fringe benefits are discussed in Section V, while Section

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.

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.

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.

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.

Under the concept of one country, two systems, even though the Hong Kong Special Administrative Region (‘SAR’) is politically part of the People’s Republic of China (‘PRC’), its legal system is distinct from that of the PRC. The SAR has a common law system whilst the PRC has a civil law system. However none of the decisions of the PRC courts affect adults in the SAR. At first instance are various Magistrates’ Courts, Tribunals, the District Court, and the Court of First Instance (‘the FI Court’). Generally, appeals from those Courts and Tribunals are heard by the Court of Appeal (individual Courts and Tribunals may have procedures for self-review for some types of proceedings). The FI Court and the Court of Appeal are collectively called the High Court. Appeals from the Court of Appeal are heard by the Court of Final Appeal, which is the pinnacle of the judicial hierarchy in the SAR.

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

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.

"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.

There has been a recent increase in merger-related litigation before the Competition Appeal Tribunal, driven largely by an increase in merger prohibition decisions taken by the Competition and Markets Authority. An earlier article considered several merger judgments of the CAT. The present article considers the outcomes of subsequent appeals in two of these cases, Facebook (concerning the CMA’s powers to impose interim enforcement orders) and JD Sports (in which the CAT quashed the CMA’s finding of a substantive lessening of competition). It also considers the outcome of two then pending challenges to CMA decisions to prohibit mergers, FNZ and Sabre. In particular, the Sabre case concerned the CMA’s power to assert jurisdiction, under the share of supply test, to review a merger between two American companies in circumstances where the target company had no direct revenues from customers located in the UK. The judgments in Facebook and Sabre are likely to be of particular relevance to parties that choose not to notify voluntarily their merger to the CMA and so expose themselves to the risk of the CMA identifying and then opening an own initiative investigation into that merger; they confirm that the CMA has a broad discretion in applying the share of supply test and in adopting an IEO of broad scope to the businesses of both merger parties.

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

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.