CAT certifies Boundary Fares opt-out collective proceedings against the operator of the Thameslink, Southern and Great Northern rail franchises

29 Mar 2023

On 24 March 2023, the Competition Appeal Tribunal certified an application for opt-out collective proceedings against Govia Thameslink Railway Limited, the operator of the Thameslink, Southern and Great Northern rail franchises, together with its parent companies, for alleged abuses of their dominant position in relation to the sale of “Boundary Fares”, a type of extension ticket for use in conjunction with a TfL Travelcard. The Tribunal’s judgment is available here.

The class representative, Mr Justin Gutmann, alleges that the Defendants abused their dominant position by failing to make Boundary Fares sufficiently available, or to use their best endeavours to ensure a general awareness among their customers of Boundary Fares, and alleges that this has resulted in many Travelcard holders paying twice for part of their rail journeys. The Defendants deny the claim in full.

The application for a collective proceedings order was unopposed by the Defendants in light of the fact that the Tribunal has already authorised Mr Gutmann to act as the class representative in materially identical collective proceedings against the operators of the South Eastern and South Western rail franchises: see here. An appeal against that judgment was dismissed by the Court of Appeal in July 2022: see here.

At a hearing on 22 March 2023, the Tribunal also considered an application by the Secretary of State for Transport to intervene in the three sets of collective proceedings. The Tribunal granted the Secretary of State permission to file written submissions on the regulatory framework of fare setting and arrangements made thereunder, but otherwise refused his application.

The Tribunal also determined that the three sets of collective proceedings shall be case managed and tried together. A further CMC will be held in the summer term to consider directions to trial.

Philip Moser KCStefan Kuppen and Alexandra Littlewood (instructed by Hausfeld & Co LLP and Charles Lyndon Ltd) represent Mr Gutmann.

Tim Ward KC and James Bourke (instructed by Slaughter and May) represent First MTR South Western Trains Limited.

Paul Harris KCAnneliese Blackwood, Michael Armitage and Clíodhna Kelleher (instructed by Freshfields Bruckhaus Deringer LLP) represent Govia Thameslink Railway Limited, Govia Limited, The Go-Ahead Group Limited, Keolis (UK) Limited and London & South Eastern Railway Limited.

Anneli Howard KC, Brendan McGurk and Khatija Hafesji (instructed by Linklaters LLP and Eversheds Sutherland) represent the Secretary of State for Transport.