The Court of Appeal has handed down judgment on Amazon’s applications for permission to appeal against the decision of the Competition Appeal Tribunal (CAT) to grant Collective Proceedings Orders in proceedings brought by Robert Hammond and Professor Andreas Stephan relating to the operation of Amazon’s featured merchant algorithm in selecting the “Featured Offer” displayed in the “Buy Box”.  The Court of Appeal (Snowden and Zacaroli LJJ) listed Amazon’s permission applications for an oral hearing but ultimately refused its applications.

The judgment is reported at [2026] EWCA Civ 183.

Jon Turner KC appeared for Amazon in the Hammond proceedings instructed by Herbert Smith Freehills Kramer LLP.

Kristina Lukacova appeared for Amazon in the Stephan proceedings instructed by Covington & Burling LLP.

Ben Rayment appeared for Mr Hammond instructed by Charles Lyndon Limited and Hagens Berman EMEA LLP.

Philip Moser KC is also instructed on behalf of Mr Hammond.

The Court of Justice of the EU today handed down final judgment on appeals brought by various airlines against judgments of the General Court dismissing appeals against the European Commission’s 2017 decision finding a worldwide cartel, implemented in the EEA, between various airlines in relation to surcharges on cargo shipments and which operated between 1999 and 2006.  The Court of Justice dismissed all the appeals, bringing to an end EU competition proceedings that have lasted 20 years from the initial dawn raids in 2006.  Those dawn raids were followed by a previous decision of the Commission in 2010 that was annulled by the General Court in 2015 and then largely re-adopted by the Commission in 2017.  The appeals cover various points on the law relating to cartels and fines, including on the test for implementation of a cartel in the EEA and on the concept of a single and continuous infringement.

George Peretz KC and Josh Holmes KC acted for the European Commission in separate appeals. Both George and Josh are called to the Bar of Ireland and therefore hold full rights of audience before the EU Courts.

 

On Friday 13 February, the Competition Appeal Tribunal heard the first case management conference in the collective action brought by the proposed class representative, the Association of Consumer Support Organisations (“ACSO”), against Amazon.

ACSO seeks to claim damages from Amazon on behalf of a class of UK consumers who purchased products sold by merchants on Amazon’s UK marketplace. ACSO contends that Amazon’s use of alleged price parity policies is in breach of the Chapter I and Chapter II prohibitions in sections 2 and 18 of the Competition Act 1998, and enabled Amazon to charge higher marketplace fees to merchants which were passed on to UK consumers. Amazon denies the existence of the alleged price parity policies and denies breaching competition law.

At the first case management conference Amazon applied to strike out ACSO’s claim as an “abuse of process” because the customer class that ACSO seeks to represent overlaps with a related collective proceedings claim brought by a class representative, Mr Hammond, which has already been certified by the Tribunal. In the alternative, Amazon sought a direction that ACSO be compelled in advance of a CPO hearing to replead its claim to rely on the experts instructed by Professor Stephan, a class representative in related proceedings brought on behalf of a class of UK merchants (in relation to the alleged infringement and overcharge) and by Mr Hammond (in relation to pass-on).

ACSO resisted Amazon’s strike-out application on several bases, including that there is no overlap on the issue of Amazon’s alleged liability as between the ACSO and Hammond claims. It resisted Amazon’s alternative application on the ground that it should not be precluded, particularly prior to certification, from relying on its own expert with a different and arguably better-suited methodology to advance its case.

By an oral ruling given on the day by Sir Peter Roth, the Tribunal dismissed Amazon’s strike-out application (with reasons to follow). It directed, however, that ACSO reconsider its CPO application and its claim form and, insofar as issues of market definition and dominance are the same as between ACSO’s CPO application and the certified collective proceedings brought by Mr Hammond, make any necessary amendments so that the customer class use the same expert and methodology and are represented by a single group of lawyers in respect of those issues. The Tribunal also directed that ACSO’s expert economist liaise with the experts instructed by Mr Hammond and Professor Stephan and produce revised proposals in relation to the alleged conduct and pass-on, to be addressed at the hearing of the CPO application.

Ben Lask KC, Luke Kelly and Jenn Lawrence are acting on behalf of ACSO, instructed by Stephenson Harwood LLP.

Daisy Mackersie and Kristina Lukacova are acting for Amazon, instructed by Covington & Burling LLP.

 

The CAT has today handed down a long-anticipated judgment on pass-on in the Interchange Umbrella Proceedings, following Trial 2 which took place between November 2024 and April 2025.

Trial 2 brought together two sets of proceedings relating to the multilateral interchange fees (MIFs) set by Visa and Mastercard – the MIF Umbrella Proceedings on behalf of thousands of merchant claimants in respect of all MIFs; and the Merricks v Mastercard collective proceedings on behalf of UK consumers. The latter and the claim brought by Allianz settled during the course of the trial. Trial 2 dealt with pass-on at two levels: pass-on of MIFs by acquiring banks to merchants; and further pass-on by merchants to consumers. The class representative in the CICC collective proceedings, which claims on behalf of merchant claimants in respect of commercial card MIFs also participated in respect of acquirer pass on.

The Tribunal has delivered an important judgment on the legal principles relating to pass-on when pleaded either as an element of the claim or as mitigation defence. In respect of pass on by merchants to consumers it held that the Defendants had to prove a “direct causative link” between the MIF overcharge and downstream prices. The Tribunal found that the Defendants had not demonstrated the requisite direct causative link in respect of any of the Claimants (with the exception of Travix, WorldRemit and the underwriting part of Allianz’s business) and therefore the legal test for causation for pass-on was not met. In respect of pass-on by acquiring banks to merchants, the Tribunal held that direct causation was proven, and that so-called ‘blended’ MIFs were passed on to merchants at a rate of 85%.

Jack Williams and Alastair Holder Ross represented Mr Merricks (and the represented class of consumers), instructed by Willkie Farr & Gallagher (UK) LLP

Philip Woolfe KC and Reuben Andrews represented the merchant claimants instructed by Stephenson Harwood LLP and Scott+Scott UK LLP, as well as Merchant  Claimants in the CICC collective proceedings in respect of acquirer pass-on, instructed by Harcus Parker.

Ben Lask KC represented Allianz, instructed by Pinsent Masons LLP

Francis Hornyold-Strickland acted as sole counsel in a SIAC arbitration between Dubai-based and Russian commodities traders for the sale and purchase of 66,000 metric tons of Russian sanctioned gasoline. Acting for the Claimant against Jan Heuvels (former global partner of Ince & Co), Francis successfully argued that the Respondent had repudiated the second of two interconnected sale and purchase deals. This left his client with no option but to source more expensive, non-sanctioned, alternative gasoline on the spot market, the difference in price between which the Claimant was entitled to recover. The case involved complex issues including, among other things: (a) jurisdictional challenges; (b) the scope of two arbitration agreements and whether cancellation costs under a charterparty entered for the purpose of carrying the cargoes of gasoline could be brought in the SIAC arbitration pursuant to the guidance in Fiona Trust v Privalov, or whether they had to be brought in LMAA arbitration in London; (c) whether Russian sanctioned gasoline was the same “product” as non-sanctioned gasoline for the purposes of measure of damages and mitigation; and (d) how to assess the question of whether there was an “available market” in the context of an extended FOB, rather than classic/straight FOB, contract.

The award underscores both Monckton Chambers’ and Francis’ strengths in international commercial arbitration, and their increasing involvement in the Middle-Eastern legal market, particularly the UAE.  Francis was instructed by Mark Lakin, Paul Katsouris, and Mayss Akasheh of Stephenson Harwood, Dubai.

A collective action on behalf of 50 million UK consumers against Apple over its Apple Pay service was filed with the CAT. It has received extensive media coverage, including by The Guardian, The Lawyer and The Mirror.

Ben Lask KC, Julian Gregory and Alastair Holder Ross of Monckton Chambers are instructed by Milberg London LLP to act for the proposed class representative, the financial campaigner and journalist James Daley.

The claim contends that Apple has abused a dominant position by limiting access to the near field communication (NFC) chip in iPhones, required for contactless ‘tap-to-pay’ payments in stores.  Apple thereby ensured that Apple Pay has been the only mobile wallet on iPhones in the UK.

As a result of that monopoly, banks wishing to enable their customers to use debit or credit cards to make contactless payments on their iPhones have been forced to pay Apple’s inflated Apple Pay fees. The claim alleges that these costs are ultimately passed on by banks to UK consumers through charges for personal banking products, whether or not they themselves use Apple Pay.

The claim is being funded by Omni Bridgeway. Oxera Consulting are providing expert economic analysis.

The High Court has dismissed a judicial review challenge by Wales & West Utilities Ltd (WWU) against a decision of the Competition and Markets Authority (CMA), acting as the first instance appeal body, to dismiss appeals by a number of energy companies against Ofgem’s RIIO-2 price controls.

This is the first time the High Court has considered the CMA’s appellate function under the Gas Act 1986.  In rejecting all of WWU’s grounds of challenge, the Court has provided important guidance on the standard of review to be adopted by the CMA and the statutory duties applicable to both the CMA and Ofgem.

Ben Lask KC acted for the CMA.

A copy of the Judgment can be found here.

The Divisional Court (Males LJ and Bourne J) has dismissed a judicial review challenge brought by US musicians’ unions against recent changes to UK copyright law.

The claim centred on arguments that the changes were incompatible with the UK’s obligations under three international treaties: the Rome Convention, the WIPO Performances and Phonograms Treaty (WPPT), and the recently ratified Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

None of these treaties have been incorporated by Parliament and the Court held that the grounds alleging non-compliance with them were non-justiciable.

The judgment reaffirms orthodox constitutional principle that, within the UK’s dualist legal system, domestic courts do not have jurisdiction to determine whether the executive has correctly complied with such treaties. In reaching that conclusion the Divisional Court undertook a detailed analysis of the key authorities, and concluded that the exception arising under the Launder line of caselaw is narrowly confined. The Court also accepted the Secretary of State’s argument that, because the arguments were non-justiciable, it should not give any view on whether the Government’s legal position was tenable.

The judgment provides valuable guidance on the limits of public law challenges that allege non-compliance with unincorporated international treaty obligations. The analysis is particularly notable because – unlike recent cases in this area (e.g. the Al Haq arms exports to Israel challenge) – it does not arise in a national security context.

The Court also rejected a vires argument, and refused permission to advance a challenge to the underlying consultation process.

The judgment is available here.

Ewan West KC and Will Perry acted for the Secretary of State.

The King (oao) Midlands Partnership University NHS Foundation Trust v  HMRC – Court of Appeal refuses the Trust permission to Appeal (16 December 2025)

The Court of Appeal has refused the Trust permission to appeal from the Upper Tribunal’s decision in The King (oao) Midlands Partnership University NHS Foundation Trust v HMRC [2024] UKUT 00334 (TCC), thereby finally concluding this VAT judicial review in HMRC’s favour. Relevant public health services supplied to local authorities by the Trust were within the scope of VAT.

The Court of Appeal stressed that where a public body sought to rely on Article 13(1) PVD (and see s 41A VATA 94) to establish that supplies which it made were outside the scope of VAT then the public body was required to establish that differences in the legal conditions under which it operates have a material impact on the way in which the relevant services are provided, as compared to private operators that may provide those services.

The UT had dismissed the Trust’s claim that the provision of various public health services  by it to local authorities were not in the course of a business or economic activity because, the Trust having contended that they were not in return for consideration, in any event, not economic activity within Article 9 PVD, or alternatively not economic activity within Article 13 PVD because in providing the services they engaged in those activities as public authorities. The UT dismissed the claim on all grounds. The Trust applied to the UT for permission to appeal to the CA, on all grounds apart from ‘no consideration for supply’, but was refused permission by the UT.

The Trust made a further  application for permission to appeal to the CA. The CA deferred deciding the application until after the Supreme Court gave its judgment in Northumbria Healthcare NHS Foundation Trust v HMRC [[2025] UKSC 37 (‘Northumbria SC’), which was relevant to Article 13 PVD, then proceeded to decide the application on the papers.

The CA refused permission to appeal for the following reasons:

On the Article 13 PVD “acting as a public authority” point, in relation to ‘special legal regime’ the Trust  had failed to establish that differences in the legal conditions under which it operates have any material impact on the way in which the relevant services are provided, as compared to private operators that may provide those services (see Northumbria SC at [60], [67] and [78]).That was critical and there was no arguable error in the approach of the UT on that point.

On the Article 9 PVD “no economic activity” point, the CJEU case law indicates there may be economic activity even if there is public funding or the performance of a public duty.  There was no arguable error in the UT’s approach to the question of whether there was economic activity. It was entitled, and indeed bound, to have regard to the facts, including the contractual framework and tendering process, which were objective, not “subjective”, factors.

The Edwards v Bairstow type challenge to findings of fact by the UT did not arguably meet the high standard required to challenge the

UT’s factual findings. In reality, as a generalised attack, it was hopeless. It was therefore not necessary to  address the further (apparently legitimate) complaint by HMRC that this ground was not put to the UT when permission to appeal was sought from the UT.

Peter Mantle represented HMRC in the Court of Appeal and appeared on behalf of HMRC in the Upper Tribunal.