UK: UK Government Publishes Response To Consultation On Options For Reform Of Competition Law Private Actions

On 29 January 2013, the UK Department for Business, Innovation and Skills ("BIS") published the Government's response to its earlier consultation on options for reform of private actions in competition law.

The reform, which represents a far-reaching overhaul of the way parties claim damages for competition breaches in the UK, is part of the Government's wider plans to reform the general UK competition regime, and is intended to address certain of the shortcomings identified by the Office of Fair Trading ("OFT", or in due course, the "Competition and Markets Authority", or "CMA") specifically related to private enforcement. According to the OFT, UK consumers benefited from the competition regime by £810 million in 2011-2012. However, OFT research also highlights that many smaller businesses and consumers simply do not bother to seek redress for competition infringements due to high legal costs and complexity, as well as a genuine lack of incentive to act on their own in court for often small amounts. These findings prompted the Government to launch a stakeholder consultation in April 2012 on how to improve the system in relation to private enforcement. The results of this consultation are now publicly available and spell out the Government's intention to implement reforms in four main areas.

First, the role of the Competition Appeal Tribunal ("CAT") is to be enhanced into the main jurisdiction for private action competition cases in the UK. Under the Government's plans, the CAT's competences would be expanded to hear stand-alone actions on top of follow-on actions. The new system would also enable courts to transfer both types of claims to the CAT and vice versa. In addition, the CAT would be granted the power to issue injunctions, and a fast-track procedure for simpler competition claims in the CAT would be introduced to help primarily, but not exclusively, SMEs challenge anti-competitive behaviour affecting them. However, in light of the concerns expressed by stakeholders during the consultation process, the Government decided against its initial plans for introducing a rebuttable presumption of loss for cartel cases, and addressing the passing-on defence in legislation.

Second, with regards to collective actions, the Government intends to introduce a new limited opt-out collective actions regime for competition law to benefit consumers and businesses, subject nonetheless to certain safeguards. This would cover both follow-on and stand-alone actions. In order to ensure that only meritorious claims can proceed, the CAT will be required to certify whether a collective action should be allowed to be brought under an opt-in or opt-out basis. For this purpose, the CAT's assessment should involve a preliminary test on the merits, an assessment of the adequacy of the representative and a requirement that a collective action must be the best way of bringing the case. Importantly too, only claimants or "genuine representatives" of the claimants, such as trade or consumer associations, but not law firms, third party funders or special purpose vehicles, will be able to bring claims. Other safeguards include maintaining the "loser-pays" rule, the absence of treble damages, and a prohibition on contingency fees for lawyers in opt-out collective action cases so as to avoid a US-style "litigation culture".

Third, the Government would like to encourage strongly the use of Alternative Dispute Resolution ("ADR") in competition law private actions, wherever possible. ADR would not, however, be made mandatory. Businesses subject to private competition claims should also have the option to settle quickly and easily on a voluntary basis through the Government's new opt-out collective settlement regime, inspired on the Dutch Mass Settlement Act (2005). In addition, the Government is to grant the OFT a limited discretionary role in certifying voluntary redress schemes, but again not impose one. Parties offering redress schemes could potentially qualify for fine reductions.

Fourth and finally, the Government aims to ensure that private actions truly complement the public enforcement regime. In particular, much emphasis in the Government response is put on the protection of leniency applicants and the documents they provide which may or may not be the subject of disclosure in private actions. As the European Commission is expected to submit proposals on this issue within the next few months, the Government has decided for now not to take any domestic action in this area. 

The majority of the Government's proposed reforms will now have to be implemented through primary legislation in accordance with the usual parliamentary procedure. Although no timeline for this has been stated yet, it is believed that draft primary legislation could be introduced during the next parliamentary session (i.e., May 2013-April 2014).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.