CAT certifies “Boundary Fares” opt-out collective proceedings against the operators of the South Eastern and South Western rail franchises

19 Oct 2021

Today, the Competition Appeals Tribunal (CAT) has certified two separate applications for opt-out collective proceedings against the operators of the South Eastern and South Western rail franchises for alleged abuses of their dominant positions in relation to the sale of “Boundary Fares”, a type of extension ticket for use in conjunction with a TfL Travelcard.

The class representative, Mr Justin Gutmann, alleges that the train operating companies 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, with the result that many Travelcard holders paid twice for part of their rail journeys.

Mr Gutmann will now represent an estimated 3 million London rail passengers in their claims which have an estimated total value of £93 million across the two claims.

The unanimous judgment from the CAT (available here) dismissed the respondents’ applications for strike out and summary judgment, holding that the applicant’s case on abuse is reasonably arguable, and not a “dramatic extension of the existing law”.  The CAT also found that the claims satisfy the authorisation and eligibility requirements for collective proceedings, and that the claims should be allowed to proceed on an opt-out basis.

The judgment addresses a number of important issues that are of broader relevance to the UK collective proceedings regime, including the extent to which there remains a need for individual factual assessment in collective proceedings, the extent to which a class may contain members that have not suffered loss, and a discussion of the different approaches taken by the UK and the Canadian regimes to aggregate damages awards.

The decision is only the third collective proceedings order granted by the CAT following its earlier judgments in Merricks and Le Patourel.

Philip Moser QC, Stefan Kuppen and Alexandra Littlewood (instructed by Hausfeld & Co LLP and Charles Lyndon Ltd) represent the successful class representative.

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

Paul Harris QC, Anneliese Blackwood and Michael Armitage (instructed by Freshfields Bruckhaus Deringer LLP) represent London & South Eastern Railway Limited.