As reported in previous Client Alerts, there has recently been a flurry of Collective Proceedings Orders ("CPOs") in collective (class) actions for competition/antitrust claims (as introduced in the UK by an amendment to the Competition Act 1998 (the "Act") in 2015), following the UK Supreme Court's landmark 2020 decision in Merricks v Mastercard.1
On 6 May 2022, the Court of Appeal ("CoA") handed down judgment in Patourel v BT Group (the "CoA Judgment").2 This appeal considered a judgment of the Competition Appeal Tribunal ("CAT") of 27 September 2021, the second CPO to be made in the UK (the "CAT Judgment"),3 that the proceedings should be opt-out, rather that opt-in, proceedings.
In this article, we look at the CoA's decision, the first in which an appeal court has considered the approach to determining whether collective proceedings should proceed on an opt-out or opt-in basis as part of the UK's nascent collective action regime.4
Background
Patourel's claim is brought on behalf of around 2.3 million BT customers and concerns allegations that BT abused its dominant position in the telecommunications market by imposing unfair prices, contrary to section 18 of the Act. The claim is brought on a standalone basis (i.e., without the benefit of a regulatory finding against BT that it had infringed competition law), but relies on certain findings in Ofcom's 'Review of the Market for Standalone Landline Telephone Services' dated 26 October 2017, which "concluded that BT possessed "significant market power" ... in the market for voice only telephony services and that it had charged customers materially above the competitive level".5 Damages of £589m (comprising between £238-£351 per customer) are sought.
The CAT Judgment made a CPO which certified a claim for damages as eligible for collective proceedings, and ordered that, if the claim succeeded, the remedy would be an award of "aggregated damages".6 The CAT also directed that the claim proceed on an opt-out basis (i.e., a claim that is brought on behalf of all of the members of a defined class, except those that choose to opt-out), rather than on an opt-in basis, and it was that direction which formed the basis of BT's appeal to the CoA.
Legal framework
Section 47B of the Act governs the certification of collective actions. Sub-paragraphs (10) and (11) define opt-in and opt-out proceedings, obliging the CAT to determine that a claim proceed on one or other basis,7 but without specifying the criteria to be applied in making that decision.
The Competition Appeal Tribunal Rules 2015 (the "Rules")8 expand on the framework contained in the Act, including the criteria to be applied in choosing between opt-in and opt-out proceedings.9 Rule 79(3) addresses the nature of the CAT's broad discretion in determining whether collective proceedings should proceed on an opt-in or opt-out basis, including that the CAT may take into account "the strength of the claims" and "whether it is practicable for the proceedings to be brought as opt-in collective proceedings". Those factors are addressed in greater detail in the CAT's Guide to Proceedings 2015 (the "Guide"), with the CAT noting its "general preference for proceedings to be opt-in where practicable".10
The CoA considered the following three topics relating to the legal framework:
- The criteria that the CAT should apply in selecting as between opt-in or opt-out proceedings.
- The power of the CAT to order that any damages payable be distributed by an account credit.
- The role that an assessment of the merits plays in the choice of opt-in or opt-out proceedings.
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Footnotes
1. Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51.
2. BT Group plc and British Telecommunications plc v Justin Le Patourel [2022] EWCA Civ 593.
3. Justin Le Patourel v BT Group plc and British Telecommunications plc [2021] CAT 30.
4. The CAT has, since the hearing of this appeal, handed down further decisions in separate proceedings that consider this issue: please see below in relation to our Client Alert of 17 June 2022, with a further Client Alert to follow in respect of the CAT's decision of 8 June 2022 in UK Trucks Claim Ltd v Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others; Road Haulage Association Ltd v Man SE and Others [2022] CAT 25.
5. CoA Judgment, paragraph 4.
6. Section 47C of the Act permits "aggregated damages", as a departure from the established common law principle that damages should compensate individual claimants for the losses that they have suffered.
7. The Act, section 47B(7)(c).
8. SI 2015 No 1648.
9. More generally, in determining whether the claims are suitable to be brought in collective proceedings, the CAT may take into account all matters it thinks fit, including those set out in Rule 79(2).
10. Guide, paragraph 6.39.
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.
