In a split decision, the Court of Appeal (CoA) has refused the appeal by Prof. Carolyn Roberts against the decision of the Competition Appeal Tribunal not to grant a collective proceedings order in her competition damages claims against six water and sewerage companies, on the basis that the claims were precluded by section 18(8) of the Water Industry Act 1991.

The majority, the Master of the Rolls and Lady Justice Falk, held that the claims were precluded by section 18(8), although for reasons different from those relied on by the Tribunal.  Lord Justice Zacaroli gave a dissenting judgment in which he concluded that the claims were not so precluded, such that he would have allowed the appeal.

Like other water and sewerage companies, the six proposed defendants are subject to price control regulation by Ofwat.  Under that regime, the revenues that each company is allowed to charge households for the provision of sewerage services are controlled, including by reference to how well each company has performed against certain performance commitments, some of which relate to the number of pollution incidents on their networks.

Prof. Roberts contended that the companies abused their dominant positions by providing misleading information to the Environment Agency and Ofwat (understating the number of pollution incidents on their networks), as a result of which they were permitted to charge consumers higher prices for sewerage services.

The claims will now not proceed, unless Prof. Roberts successfully seeks permission to appeal to the Supreme Court.

The judgment is available here, and the media summary here.

Before the CoA, Jon Turner KC and Julian Gregory represented Prof. Roberts (funded by Benchwalk), instructed by RPC.  Daisy Mackersie represented the proposed defendants, instructed by Freshfields.

Several other members of chambers have been instructed at earlier stages of the proceedings (see here).

Following the first Case Management Conference post-certification in the “Airwave” collective abuse of dominance proceedings against Motorola, the Competition Appeal Tribunal (Bacon P presiding) has scheduled the claim for a 6 week trial, to commence in October 2027. In so doing, the Tribunal unanimously granted the Class Representative’s application for a split trial, whereby Motorola’s pass-on defence is deferred until a later date, with all other issues being heard together at the first trial. The Tribunal also took the novel step in collective proceedings of requiring the Defendants to produce a costs budget setting out their incurred and estimated costs for the proceedings, accepting the Class Representative’s submissions that this step was important in ensuring costs visibility and placing the parties on an equal footing.

The case has been covered by GCR (subscription only).

Monckton’s Michael Armitage represented the Class Representative, Clare Spottiswoode, at the CMC. Michael is being led by Anneli Howard KC in the proceedings.

The Court of Appeal has today given judgment in case concerning the proper scope of the writ of habeas corpus and the (in)appropriateness of its use to challenge conditions attached to immigration bail. The Appellant (CHK) was a Brazilian national convicted of serious criminal offences and sentenced to 10 years’ imprisonment in 2012. Having completed the custodial part of his sentence the Appellant was detained pending deportation but then released on immigration bail. At the time of his application for habeas corpus he was living in the community but subject to various reporting conditions which he contended amounted to a restriction on his liberty that justified the use of the habeas corpus procedure. Despite recognising the constitutional importance of the writ (reflected inter alia in the fact that there is no requirement for permission to appeal to the Court of Appeal or indeed the Supremee Court in habeas corpus cases), the Court of Appeal nevertheless rejected the Appellant’s attempt to use the writ to challenge his bail conditions in circumstances where he was not detained.

Michael Armitage acted for the Secretary of State for the Home Department in the Court of Appeal proceedings, instructed by the Government Legal Department.

The Court of Appeal (Vos (MR), Singh LJ and Falk LJ) has today dismissed two appeals brought by Charedi Jewish children and Evangelical Christian children challenging the Finance Act 2025 which removed the exemption on VAT for private school fees.

The Charedi Jewish Claimants, represented by Khatija Hafesji, argued that the failure to implement a “low cost” fee exemption (exempting schools charging less than £7690 a year from the charge) unlawfully discriminated against them contrary to Article 14 ECHR read with A2P1.

The Charedi Jewish Claimants had a number of sub-grounds of appeal, including (i) that the Divisional Court had failed to ask itself  whether the measure was in fact objectively justified, and (ii) that the Divisional Court was wrong to accept the government’s “pluralism policy” justification. The “pluralism policy” was a reference to the government’s assertion that the state education system provides a “pluralist” education suitable for children of all faiths and none. If children from certain religious minorities felt that such education was nevertheless not acceptable to them, the failure to make an exemption was justified in the context of the “pluralism policy”.

Applying the recent Supreme Court decision in Shvidler v SSFCDA [2025] UKSC 30, the Court of Appeal carried out its own proportionality assessment. The Court agreed with the Charedi Jewish appellants that the Divisional Court had failed to apply the 4-stage test in Bank Mellat, and ask itself whether there was an objective justification for the failure to treat Charedi Jewish children differently. Instead, the Divisional Court had considered only whether decision fell within the state’s “margin of appreciation”. The Court of Appeal stated: “it is important not to avoid the question of objective justification which must be addressed in this case… although the authorities make numerous references to metaphors such as “margin”, “area” and to varying degrees of intensity of review, ultimately it seems to us those are not legal tests to be applied by a court. They are helpful tools which may assist the court on its path as it answers the questions posed by the legal test, but they are not the legal test. The legal test, as we have already said, is to be found in the four-stage test for proportionality in Bank Mellatt” (para 85).

The Court of Appeal also agreed with the Charedi Jewish appellants that the “principled” justification favoured by the Divisional Court (the “pluralism policy”) was given too much weight by the Divisional Court in the proportionality analysis. The Court of Appeal departed from the Divisional Court, when making its own fresh assessment of the proportionality of the measure, by placing considerable weight on the “practical” justifications advanced by the government, which had found little favour with the Divisional Court. Those practical considerations included the administrative difficulties of operating an exemption, the risk of abuse, and the loss of revenue.

Khatija Hafesji acted for BYL and BAU (the (Claim 1) Appellants), instructed by Rook Irwin Sweeney.

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.