United States: Now In Force: Major Amendments To The Antitrust Damages Regime In The UK

The Consumer Rights Act 2015 ("CRA") comes into force today, 1 October 2015.1 It introduces major reforms to the antitrust damages actions regime in the UK.2 In particular, the CRA broadens the type of cases that can be heard by the UK's specialist antitrust court, the Competition Appeal Tribunal (the "CAT"), to include opt-out class actions, and makes other procedural amendments aimed at facilitating and streamlining private damages actions in the UK.

The old regime

The previous rules gave rights to individuals to bring private damages actions, and allowed a narrow group of specified consumer organisations to bring opt-in class actions in the CAT. Under the old regime, damages claims before the CAT could only be brought on the basis of a prior public competition enforcement decision (known as "follow-on" actions), although actions for damages caused by alleged breaches of UK or EU competition law could also be brought in the High Court without a prior decision (known as "stand-alone" actions). The Competition Act 1998 ("CA98") also contained a framework for opt-in collective proceedings: the consent of each of the individuals concerned was required to bring or continue a claim on their behalf, and all the individuals' claims had to relate to the same infringement.

In the foreword to the report announcing the reforms that would be incorporated into the CRA, the Secretary of State for Business, Innovation and Skills anticipated that the reforms would "dramatically increase the ability of business and consumers to hold to account those who have breached competition law. Their implementation will significantly enhance the benefits of the competition regime to our economy, driving improvements for both business and consumers".3

Extended jurisdiction of the CAT and a new "fast track" procedure

The CRA extends the jurisdiction of the CAT to hear both stand-alone and follow-on actions, and introduces a new collective proceedings regime covering both opt-in and opt-out class actions.

It also extends the relief available to claimants in the CAT to include interim injunctions as well as damages. Previously, the CAT had no powers to impose injunctions. Under the new regime, its powers are equivalent to those of the High Court. The principles applied by the CAT in deciding whether to grant an injunction will be the same as in the High Court, save that applicants for interim injunctions in claims allocated to the "fast track" procedure (see below) will either not be required to give cross-undertakings as to damages (to compensate the respondent in the event that the injunction is not ultimately granted at trial), or will only be required to give capped undertakings.

In line with the CAT's extended jurisdiction and the intention of the reforms to improve access to redress to individuals and SMEs, a new "fast track" procedure has been introduced. The CAT may, at any time, either on its own initiative or on the application of a party, make an order that particular proceedings be subject to the fast track procedure, pursuant to which the main substantive hearing must be fixed to commence as soon as practicable, and in any event within six months of the order allocating the proceedings to the fast track. Furthermore, the amount of recoverable costs is capped at a level to be determined by the CAT.

Collective proceedings

The most significant change brought about by the CRA is the extension of collective actions to include wrongly opt-ins but also opt-out class actions. Opt-in actions are brought on behalf of each class member who opts in by notifying the representative that its claim should be included in the collective proceedings; opt-out collective proceedings are those brought on behalf of each class member except any class member who opts out by notifying the representative that its claim should not be included in the collective proceedings. The CRA also excludes from the opt-out procedure any class member who is not domiciled in the UK at a specified time– such claimants would need to opt-in to the claim instead.

Collective proceedings may be brought before the CAT, and can combine two or more claims which can be brought under the amended CA98 (i.e. stand-alone or follow-on actions). Under the new regime, the CAT can make an award of damages in collective proceedings without undertaking an assessment of the amount of damages recoverable by each represented person (i.e. it can group all of the claims together), although it is not permitted to award exemplary damages.

Collective settlement and voluntary redress schemes

In collective proceedings, the CAT is now empowered to make a collective settlement order approving a proposed settlement between parties. Such an order is binding on all persons in the proceedings who are based in the UK and did not opt-out, or, if domiciled outside the UK, opted in.

The CRA also grants the CAT the power, on application, to approve a voluntary redress scheme, which is an additional form of alternative dispute resolution in private actions for infringements of competition law. Undertakings that have been the subject of an antitrust infringement decision can use voluntary redress schemes to offer compensation to parties affected by the infringement.

Changes to limitation periods in the CAT

Previously, claims in the CAT could be brought up to two years after the later of the date of expiry of the defendant's right to appeal the underlying infringement decision, or the date on which the cause of action accrued. Under the new regime, the time limit for claims to be brought before the CAT is amended to match the relevant limitation period for claims before the High Court, which is six years from the time the damage occurred, subject to deliberate concealment. Transitional rules apply.

Further changes to come – EU Damages Directive

Further changes to the antitrust damages actions regime in the UK will result from the requirement to implement the EU Damages Directive4 (the "Directive") by 27 December 2016. The Directive will bring about further refinements: for example, the requirement that an infringement decision of a national competition authority in any EU Member State will constitute at least prima facie evidence of infringement before the courts of other EU Member States, and the establishment of a rebuttable presumption that cartels cause harm.5

Footnotes

1 Consumer Rights Act 2015 (Commencement No. 3, Transitional Provisions, Savings and Consequential Amendments) Order 2015 (S.I. 2015/1630).

2 Competition Act 1998 and the Enterprise Act 2002.

3 Department for Business, Innovation & Skills "Private actions in competition law: A consultation on options for reform – government response", January 2013.

4 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union Text with EEA relevance, OJ L 349, 5.12.2014, p. 1–19.

5 See summary of main changes at: http://ec.europa.eu/competition/antitrust/actionsdamages/directive_en.html

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 Mondaq.com.

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

Authors
Events from this Firm
20 Sep 2018, Seminar, Tokyo, Japan

Orrick's Total Access Japan Event Series provides entrepreneurs business, tactical, and legal education through complimentary panels and seminars and networking events. The next event will take place on Thursday, September 20 from 6:00 pm to 7:30 pm.

21 Sep 2018, Conference, Florida, United States

Employment partner, Michael Weil will be participating in The Intellectual Property Law Institute’s 2018 Conference.

26 Sep 2018, Conference, New York, United States

Employment Partner, Mandy Perry and Chair of Orrick's Global Employment Law Practice, Mike Delikat will be participating in the Global Business Protections 2018: International Restrictive Covenants and Confidential Information Conference.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions