Court of Appeal decides on jurisdiction for UK antitrust class action challenges

The English Court of Appeal has today found that a right of appeal – on a point of law – lies from a decision of the Competition Appeal Tribunal to refuse certification of collective proceedings for breaches of competition law under the Consumer Rights Act 2015.

This decision will be of significant interest to those monitoring the development of the new collective proceedings regime for breaches of competition law that was introduced in the UK in 2015.

Basis for the decision

The Court of Appeal has found that the decision to refuse certification of collective proceedings is a decision “as to the award of damages”, and therefore a right of appeal on a point of law exists, because it denies the proposed class representative the “unique remedy” of an aggregate award of damages under s47C(2) of the Competition Act 1998.

It is unclear from the Court’s decision what right of challenge will be available in cases where – as will sometimes be the case – an aggregate award of damages is not sought in collective proceedings.

Does it matter?

In most cases, there will be little if any difference between the grounds of challenge that are available for an appeal on a point of law to the Court of Appeal, and those that are available using the alternative means of challenging the Tribunal’s decision, by way of a judicial review to the High Court.

There may, however, be some practical differences between the two routes – most obviously, as to the relevant Court that will hear the initial challenge and the number of further appeals that may be available.  The significance, if any, of those and any other differences between the two routes of challenge will emerge as the regime develops.

What next?

In the particular case at issue – a very large proposed collective action brought by Walter Merricks CBE against Mastercard that was dismissed by the Tribunal in July 2017 – the Court of Appeal has yet to determine whether Mr Merricks has permission to appeal and, if so, whether his appeal is successful.

Those two issues will be determined at a ‘rolled up’ Court of Appeal hearing next year, which will be watched keenly by all of those with an interest in the development of the new antitrust collective proceedings regime in the UK.

Freshfields acts for Mastercard in these proceedings. The team is led by partners Mark Sansom, Jonathan Isted and Nick Frey, assisted by senior associates Ricky Versteeg and Simon Duncombe and associates Ingrid Rois, Amy Rawson and Alex Holroyd.