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The current private enforcement “sweet spot” enjoyed by the UK, attracting worldwide claimants to its courts, could significantly shrink if the UK leaves the EU, and divergences between legal systems leads to “forum shopping”, Monckton Chambers’ Anneli Howard cautioned junior lawyers, in a keynote speech, held at the Competition Appeal Tribunal in Bloomsbury, on Friday (15 April).
Anneli Howard was a key speaker at the annual event, organised by Jordan Publishing’s Competition Law Journal and aimed at junior lawyers, economists and academics with an interest in competition issues. This year’s conference was entitled: Brexit? Divergence and convergence in UK and EU competition law & Private enforcement: calm before the storm?
Focussing on the topic “Brexit – exit stage left for competition law damages?”, Anneli Howard predicted that the immediate fall out from BREXIT is likely to be minimal in the short term but, over time, divergences could appear between the UK and the rest of the EU in terms of litigation practice or substantive competition law. Importantly, Commission Decisions would no longer be binding on English courts, who would be free to hear claims in parallel with Commission investigations, appeals and concurrent proceedings elsewhere in the EU. UK Judgments would no longer be recognised and enforced in 28 Member States. The UK would play no role in preliminary references before the CJEU and lose the opportunity to shape and influence future legal developments. “Brexit” could lead to a significant long-term reduction of global follow-on claims being heard in London if legal uncertainties unpick the vital toolkit of private claims and undermine the confidence of litigation funders in the UK. Ms Howard tempered her caution by highlighting that alternatively there could be a positive conclusion should standalone litigation could increase, which the UK’s specialist judges would be equipped to deal with and move UK competition law forward. Divergence might actually make the UK a more attractive forum than other Member States, particularly if they are distracted in the detail of the new Damages Directive for the next 5 years. Either way, following an analogy throughout the talk to Shakespeare’s “The Winter’s Tale”, Ms Howard concluded that there was a real danger that both the new Directive and competition litigation in the English Courts could become a “lost child” if forced to survive alone.
The talk will be the basis of an article on the topic, by Anneli Howard, to be published by Jordans in June.