Gutmann Boundary Fares Case: Identifying The Boundaries Of Abuse Of Dominance

On 17 October 2025, the Competition Appeal Tribunal (CAT) handed down its judgment in three parallel collective proceedings brought by Mr Justin Gutmann against several train operating companies including First MTR South Western Trains Limited (SWR), London & South Eastern Railway Limited (LSER) and Govia Thameslink Railway Limited (GTR) (the TOCs). The claims alleged that the TOCs had committed an abuse of dominance in connection with the availability and awareness of boundary fares on the National Rail network.

The opt-out claims sought aggregate damages dating back to 2015. The focus of the trial was the question of abuse.¹ If abuse was established, causation and quantum would be addressed in a second trial, with market definition and dominance held over to a third trial.

The claims represent a significant test of the breadth of the category of exploitative abuses and their interface with broader consumer protection law. While the judgment turns largely on the facts, it is broadly helpful in adding some clarity to the boundaries of the abuse of dominance - and its relationship with general consumer protection rules.

Background

The claims were brought on behalf of consumers who held London travelcards and travelled from London to end destinations beyond the zones covered by their cards. The class representative (CR) alleged that these customers were charged twice for part of their journeys because they lacked awareness of, or access to, boundary fare tickets. Boundary fares are extension tickets intended to allow travelcard holders to pay only for the portion of a journey outside the travelcard validity zones.

The alleged exploitative abuse involved two distinct elements: (i) that boundary fares were not sufficiently available in certain sales channels (notably station vending machines and online), and (ii) that the TOCs failed to take reasonable steps to ensure passenger awareness of boundary fares, thereby imposing unfair prices/unfair trading conditions.

We consider this important judgment in more detail below, focussing on the key takeaways both for the UK competition collective actions regime and for an abuse of dominance, which is the subject of a number of ongoing collective actions. For an overview of the regime and current trends more generally, see our recent Class Actions Radar briefing and certification tracker of UK competition class actions filed at the CAT.

The judgment in summary:

The CAT found that the defendants' conduct did not amount to an abuse of a dominant position. The CAT found that:

• Competition law does not mandate that a dominant firm ensure that customers pay the most advantageous price or make the optimal purchasing decision.
• The alleged lack of customer awareness was not substantiated by sufficient evidence: the CAT was not satisfied that consumers had complained to any of these three defendants about being unable to purchase boundary fares online, and the CR had not advanced any consumer survey evidence indicating a lack of awareness. Further, the CAT found no evidence that the defendants adopted a policy to keep boundary fares obscure.
• It was not established that the defendants made any commercial gain from the alleged double-charging (and indeed the opposite was found to be true – the defendants only receive a share of revenue from the sale of a travelcard when that travelcard is actually used for travel on their services). The CAT therefore distinguished the position from that in the DSD and Deutsche Post cases, where customers had no choice but to pay the dominant firm twice for the same service.
• The CR argued that the TOCs' practices violated the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR) and that this was a 'vital clue' that they had committed an abuse. The CAT acknowledged that if there were evidence of substantive misleading conduct or material omission, unavailability or obscurity of a product, this could be evidence of an abuse. It recognised that breaches of consumer law may be relevant to competition law analysis, but noted that this would require the CR to demonstrate a breach of consumer law, which it had not. Indeed, such a breach was not pleaded and was raised for the first time in the CR's skeleton. The CAT therefore did not determine the question of CPUTR compliance, but remarked that had the question of CPUTR compliance been put to it, it would have found that there was insufficient evidence to establish non-compliance with the CPUTR.
• The CAT found that legitimate constraints may justify sales channel restrictions, accepting that objective commercial justifications, if proportionate, can defeat claims of exploitative abuse even where consumer choice is incidentally limited. Further, it acknowledged that the defendants were not required to prioritise capital expenditure on the provision of additional sales channels. Boundary fares were available from all ticket offices and, subject to operational constraints, from vending machines and other channels. Any temporary lack of availability from certain vending machines was a reasonable consequence of infrastructure and fraud prevention measures, rather than strategic restriction. Further, where online sales of boundary fares were unavailable, point-to-point fares (covering the relevant journey segment) were generally available online and the failure to develop online boundary fare functionality further did not amount to an exploitative abuse in light of the practical challenges to doing so.
• Finally, the judgment assessed whether businesses can be liable for losses suffered when third party sellers of rail tickets (such as Trainline) do not offer certain products. The CAT left this open, stating that where there is a contractual route available for the dominant firm to hold the third party to account and ensure fairness, the failure to do so may indeed constitute abuse in certain circumstances. This means that dominant companies cannot turn a blind eye to contractual non-compliance by contracted third parties, particularly where customer access or fairness is at stake.

Key takeaways:

• The CAT reaffirmed that competition law is not a general law of consumer protection: competition law does not require dominant firms to organise their businesses for optimal consumer outcomes or to actively assist every customer with obtaining the best value.
• Exploitative abuse must go beyond a sub-par customer experience: it must involve conduct that is unfair and departs from normal competition. The CAT distinguished other cases where customers had no practical alternative but to pay twice (for example, Deutsche Post or DSD) from this case, where alternatives such as point-to-point fares were available—even if not perfectly convenient.
• High evidentiary bar remains for abuse of dominance: the CAT stated that strong and compelling evidence is required to establish abuse. It underscored the continuing need for claimants to provide robust factual and econometric evidence to support claims of exploitative conduct, especially in opt-out consumer class actions. As collective proceedings under the Competition Act continue to evolve, the CAT's analytical discipline and adherence to established abuse principles set an important precedent. The CAT was critical of the expert evidence provided by the CR's expert, which it found to be generally unsatisfactory, noting it was often based on assumptions rather than specific knowledge of the defendants' practices, although the CAT considered the evidence to be honest and well-intentioned.
• Certification remains an ongoing question: the CAT referred back to its earlier judgment (October 2023) granting certification in which it considered whether the litigation was proportionate and worth pursuing, given the balance of potential costs and benefits. In this judgment the CAT noted that if only a minor subset of consumers could potentially benefit from a successful claim, the rationale for allowing large group proceedings may no longer exist. In other words, the CAT noted that if it was wrong in its rejection of only some elements of the alleged abuse, that would nonetheless lead to a significant narrowing of the class and reduction in the potential amount of aggregate damages. In those circumstances, the CAT indicated that it would want to reconsider whether to allow the proceedings to continue as a collective action or whether to revoke the CPO.

Footnote

1.The CAT briefly considered whether the steps required by the CR of the defendants would have obstructed their operation of services of general economic interest (such that the defendant would benefit from an exemption from the prohibition on abuse of dominance), but the CAT did not need to do so in detail as the defendants did not advance substantive arguments or evidence on this and the CAT determined there was no abuse.

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