Representative Of Instrument Purchasers Strikes Wrong Note With Tribunal Over Transparency Obligations

The Competition Appeal Tribunal has approved the withdrawal of five proposed opt-out claims against manufacturers of musical instruments, after the Proposed Class Representative (PCR) remained unable to secure funding for the proceedings, four years after the first of them was commenced.

Background

The claims were filed in 2022 and 2023 and brought by Ms Elisabetta Sciallis, the PCR, against companies within the Fender, Korg, Roland, Yamaha and Casio groups (the Proposed Defendants). The proposed claims were a mix of follow-on and stand-alone claims, alleging that the Proposed Defendants’ retail price management policies suppressed intra-brand price competition, causing UK consumers to pay higher prices for certain musical instruments and accessories during the relevant infringement periods (around 2013 to 2018).

A case management conference (CMC) was held on 19 March 2026, by which point the claims had not progressed, and the Proposed Defendants had expressed concerns about the PCR’s funding and legal representation. At that CMC it became apparent that the PCR had not secured funding, so a further hearing was held on 10 June 2026 to determine the adequacy of the PCR’s funding, insurance and legal representation for the purposes of certification of the proposed collective proceedings. A week before the hearing, the PCR confirmed that she still lacked funding for the proceedings and would therefore be applying to withdraw them. The 10 June 2026 hearing considered the circumstances leading up to that withdrawal and whether the Proposed Defendants’ costs should be assessed on the standard or the indemnity basis.

Decision

The Tribunal found that there had been a considerable lack of transparency in the way in which the PCR had addressed her funding arrangements. At the outset, she had made clear that the funding arrangements remained to be finalised, and that had been supported by a letter of intent from her Funder (North Wall). However, following the decision by North Wall to step away (in January-March 2023), no updates had been provided. The Tribunal considered that the PCR was under a duty to make both the parties and the Tribunal aware of this material change in circumstances. 

The Tribunal also considered that the PCR had failed in her duties of full and frank disclosure (in relation to the impact of the funding position on the prospects of the claim) when making applications to serve certain of the Defendants out of the jurisdiction. Additionally, the position had not been made clear in the materials filed in support of the claim against Casio in 2023. 

The Tribunal found that, in response to requests from the Proposed Defendants, the PCR had been “opaque and unclear” in her explanations of the position, whereas “The Tribunal and the [Proposed Defendants] should have been given full and transparent information as soon as the funding arrangements were no longer as stated in the collective proceedings claim forms”. As a result, the Tribunal considered this conduct “outside the norm” and awarded the Proposed Defendants their costs on the indemnity basis.

Comment

The judgment provides guidance on the Tribunal’s expectation of transparency from parties to collective proceedings. In particular, if there is a material change to any of the facts and matters that were set out in a statement of case, and that change is relevant to the authorisation or eligibility conditions for certification, a PCR is obliged promptly to bring that change to the attention of the Tribunal and the proposed defendants.

Specifically, since the ability to pay costs is part of the certification criteria, the Tribunal emphasised that if funding arrangements change materially from how they were described in the claim form, this must be notified promptly so that the Tribunal can take it into account as part of its ongoing case management of the proceedings. 

This aligns with the Tribunal’s acknowledgement in its recent decision in Ennis (read our earlier article) that consideration of certification is an ongoing, proactive duty for the Tribunal. As such, information that may affect the Tribunal’s view of whether certification is appropriate must be communicated, and a PCR should not delay notification or obfuscate the position in the hope of buying time to resolve matters.

That said, the Tribunal was careful not to impose a disproportionate reporting burden, stating that it did not require “a running commentary" on every development in the claim. The requirement to keep the Tribunal informed was limited to points which are relevant to certification, or whether the certification should be varied or revoked.

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