8.9 million Sony PlayStation UK customers could be owed a share of up to £5 billion in damages if the legal claim is successful. A collective action brought against the company at the Competition Appeal Tribunal alleges that Sony is breaching UK and EU competition law by abusing its dominant position resulting in consumers paying inflated prices for digital PlayStation games and in-game purchases over the last six years.

Robert Palmer QC is leading Fiona Banks on behalf of the class representative Alex Neill, instructed by Milberg LLP. You can view the press release here.

You can also view various national news articles here:

• Sky News
• BBC News
• ITV News

Today, the Court of Appeal has dismissed the appeals brought by the train operating companies responsible for the South Eastern and South Western rail franchises (the “TOCs”) against the CAT’s judgment in Gutmann v First MTR South Western Trains Limited and Ors [2021] CAT 31.

In its judgment, the CAT certified two applications for opt-out collective proceedings against the TOCs in relation to alleged abuses of their dominant positions in connection with 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 TOCs 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. The class consists of an estimated 3 million London rail passengers. The claims have an estimated total value of £93 million across the two claims.

The TOCs had appealed the CAT’s judgment principally on the basis that many and varied individual issues of causation and therefore liability made the claims unsuitable for inclusion in collective proceedings. They argued that the CAT’s approach of allowing issues of liability to be considered in aggregate undermined the TOCs’ right of defence. Further grounds of appeal concerned the level of scrutiny the CAT should apply to the expert methodology (and the test in Pro-Sys v Microsoft), the CAT’s assessment of the costs and benefits of continuing the claims, and a rejected application for summary dismissal.

In an important judgment for the development of the collective proceedings regime, the Court of Appeal rejected the TOCs’ appeals. It held that:

• Section 47C(2) of the Competition Act 1998 permits issues relating to liability to be determined upon an aggregate top-down basis, and does not require the position of each class member to be assessed individually. The Supreme Court’s judgments in Merricks and Lloyd were dispositive of this issue, and in any event, the purposive interpretation of s47C(2) led to that conclusion. The Court approved the CAT’s broad propositions that: (i) the existence of some no-loss claimants in a class was not an obstacle to certification, and (ii), the interests of defendants could be catered for at trial by aggregate adjustments using sensible estimations and assumptions;
• The CAT had not erred in approving the methodology proposed by the class representative. The CAT had exercised a vigilant gatekeeper role and gone to proper lengths to satisfy itself as to the robustness of the class representative’s methodology. The Defendants’ criticisms of the methodology either did not raise an arguable issue of law or could appropriately be dealt with by the CAT making use of its ‘broad axe’;
• The TOCs’ criticisms of the CAT’s cost-benefit analysis did not raise any issue of law;
• Questions as to the TOCs’ liability for the conduct of third-party ticket sellers and their failure to offer Boundary Fares for all ticket types were issues for trial, and the CAT had not erred in declining to summarily dismiss them. In this context, the Court of Appeal reviewed the law on abuse of dominance by the imposition of unfair prices or other unfair trading conditions.

A copy of the judgment can be found here.

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

Fiona Banks (instructed by Slaughter and May) represents First MTR South Western Trains Limited. Tim Ward QC and James Bourke represented First MTR before the CAT.

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

The Chancery Division has this week made an indemnity costs order against MGA, the world’s fourth largest toy manufacturer, after a four-week competition trial was adjourned when major breaches of MGA’s disclosure obligations were discovered on the eve of the PTR.

MGA manufacture the bestselling ‘LOL Surprise!’ range of collectible dolls, and had earlier success with ‘Bratz’. Cabo, the claimant in the proceedings, designed the ‘Worldeez’ line of collectibles, which it was preparing to launch in the UK in May 2017. It alleges that MGA launched a concerted campaign to exclude Worldeez from the market, threatening to refuse stock of LOL Surprise! to retailers if they stocked Cabo’s rival product and making false allegations that Worldeez infringed its IP rights.

Less than three weeks before the trial was due to start, MGA’s solicitors wrote to the Court indicating there had been serious errors in its disclosure process, and many tens of thousands of potentially relevant documents had never even been harvested. The trial was promptly vacated, and MGA and its solicitors ordered to provide a full explanation of what had occurred at a further hearing.

That hearing took place before Joanna Smith J on 20 July, where the Court heard evidence that some 900,000 documents were never captured as a result of technical errors in the harvesting process (conducted by MGA’s own IT team); the supervision of the process was also inadequate, and a number of ‘red flags’ had been missed by the solicitors, which (if properly addressed) could have led to discovery of the issues much earlier. The trial has now been relisted for October 2024, a delay of more than two years.

At this week’s hearing, the judge ordered MGA to pay Cabo’s costs of the adjourned trial (as costs thrown away) on the indemnity basis, and to make a payment on account of over £750,000. The company is also required to engage an external e-disclosure provider to repeat its entire document harvest process. Judgment was reserved on Cabo’s application for an unless order, under which MGA’s Defence would be struck out if it fails to comply with its disclosure obligations by December this year.

Ronit Kreisberger QC, Stefan Kuppen, and Alfred Artley represent Cabo, instructed by Spector Constant & Williams.

The case is being reported in the media: The Law Gazette.

The judgment handed down on 29th July can be found here.

The Commercial Court has dismissed a claim arising from the management buy-out of two family businesses; a demolition business known as DSM and the property developer, the St Francis Group. The claim was brought by a principal of the family, claiming that the two executives who had led the MBO had conspired to acquire the businesses from the family at a £100m discount to their true value. As well as alleging that he had been the subject of numerous fraudulent misrepresentations and that key information had been hidden from him, the claimant also alleged that the executives owed him fiduciary duties which had arisen due to their close relationships spanning over a decade. After a three week trial, Mrs Justice Cockerill DBE dismissed the claims in their entirety, having determined that no such duties arose and that there was no representations or improper conduct on the part of the executives. In doing so, the Court gave useful guidance on the circumstances in which executives who are part of an MBO process may owe duties to shareholders in respect of such negotiations, and more generally on when fiduciary duties may arise outside the established categories of relationship.

Throughout the proceedings William Buck, leading Alfred Artley, acted for the successful defendants, instructed by Simon Hart and Daniel Hemming of RPC.

A copy of the judgment can be found here.

The Competition Appeal Tribunal yesterday granted a collective proceedings order in abuse of dominance claims against Google. The claims concern alleged exploitative and exclusionary abuses of dominance relating to the “Play Store”. As it did in collective proceedings against Apple which raise similar allegations, the CAT granted certification ‘on the spot’, indicating that it intends to hand down a judgment explaining its reasons for granting certification in due course.

Ronit Kreisberger QC and Michael Armitage are acting for Ms Liz Coll, the class representative in the proceedings against Google. They are instructed by Hausfeld LLP.

Josh Holmes QC, Jack Williams and Ciar McAndrew act for Google, instructed by RPC.

Monckton barristers are involved (for both class representatives and defendants) in a range of collective proceedings against large “tech” companies, including Kent v Apple, Which? v Qualcomm and Gormsen v Meta.

The Competition Appeal Tribunal has dismissed a stand-alone abuse of dominance claim against Ede and Ravenscroft, which has been appointed by a large number of UK universities as the ‘official supplier’ of academic dress and other services in relation to those universities’ graduation ceremonies. The claim was brought by Churchill Gowns, a ‘start-up’ company that has sought to establish itself as a ‘business-to-consumer’ supplier of academic dress to students attending graduation ceremonies. Churchill sought to challenge the Ede and Ravenscroft’s official supplier arrangements on the grounds that they constituted unlawful exclusive supply agreements, contrary to sections 2 and 18 of the Competition Act 1998. The CAT dismissed the claims in their entirety, holding (in summary) that Churchill’s failure to establish itself in the market was not caused by any abuse of dominance or anti-competitive agreements involving Ede and Ravenscroft, but rather by universities’ own preferences as to how best to organise their own graduation ceremonies.

Michael Armitage (led by Conall Patton QC of One Essex Court Chambers) acted for the successful defendant, Ede and Ravenscroft, throughout the proceedings before the CAT (instructed by Bree Taylor of Alius Law).

A copy of the judgment be found here.

Azeem Suterwalla and Antonia Fitzpatrick, led by Sir James Eadie QC of Blackstone Chambers, have succeeded for the Secretary of State for Health and Social Care in defending a claim for judicial review of the Food (Promotion and Placement) Regulations 2021 brought by Kellogg. The Regulations are the cornerstone of the Government’s strategy to tackle childhood obesity. The Government’s National Child Measurement Programme shows that in 2020/2021, 25.5% of 10-11 year olds were obese.

The Regulations will come into effect (in part) on 1 October 2022. They will restrict where foods which are high in fat, sugar, and salt (“HFSS”) can be positioned in supermarkets and their online equivalents, so that placement (e.g. on an aisle-end or by a checkout) can no longer be used as a strategy to drive sales.

54.7% of Kellogg’s cereal sales are of HFSS products (e.g. Frosties, Crunchy Nut Cornflakes, and Krave), and it claimed that Regulations were unlawful on vires, irrationality, and human rights grounds (A1P1 and Article 10 ECHR).

In a judgment handed down this morning, Linden J dismissed Kellogg’s claim, holding: (1) that the Regulations’ enforcement regime, which provides that food authorities can issue “improvement notices” where there are reasonable grounds for believing that a business is failing to comply with the Regulations, was not ultra vires; (2) that the Regulations’ incorporation by reference of the Nutrient Profiling Technical Guidance (“NPTG”), which contains the Nutrient Profiling Model (“NPM”) by which products are scored as HFSS or non-HFSS, was not ultra vires; (3) that the Secretary of State had not acted irrationally in not considering whether the nutrient profile of breakfast cereals should be assessed without taking into account that they are typically consumed with milk, including in not considering a prior debate between manufacturers and experts in that regard that had happened in 2004-2009 during the development of the NPM/NPTG for television advertising purposes; and (4) that the assessment of the nutrient profile of breakfast cereals without adding milk did not disproportionately infringe Kellogg’s A1P1 or Article 10 rights and that there was no irrationality of outcome.

There has been wide media coverage of Kellogg’s position that the nutrient profile of its cereals should be assessed on an “as consumed” basis, specifically with semi-skimmed milk: BBC News, the Independent, the Telegraph, the Guardian. As to that argument, Linden J held [223] that “[t]he notion that the approach advocated by Kellogg measures the “actual health impact” of a breakfast cereal is… problematic. In fact, it does not confine the measurement to the health impact of the breakfast cereal itself; it measures the impact of the cereal combined with other products and seeks to take advantage of the fact that the other products are lower in fat, sugar and/or salt or contain other compensating nutrients”.

As to Kellogg’s evidence regarding its anticipated loss of profit, Linden J observed [233] that “the irony [of that evidence] was… that the adverse impact on Kellogg… directly correlates with what the Government is trying to achieve”, adding that Kellogg had not explained why it was “unable or unwilling” to reformulate its products to remove them from the new restrictions.

The judgment is available here.

Azeem Suterwalla and Antonia Fitzpatrick (instructed by the Government Legal Department) for the Defendants.

The result has been reported in the media: BBC News.

 

The Independent Monitoring Authority for the Citizens’ Rights Agreements (“IMA”) has been granted permission to apply for judicial review of the domestic implementation of the UK’s commitments to EU and EEA citizens in the UK-EU Withdrawal Agreement and UK-EEA EFTA Separation Agreement.

The IMA contends that the EU Settlement Scheme breaches the commitments entered into by the UK by requiring EU and EEA citizens who have been granted Pre-Settled Status to apply for Settled Status or for further Pre-Settled Status before their current Pre-Settled Status expires, failing which they will automatically be considered unlawfully present in the UK with attendant consequences for their right to live and work in the UK.

Granting permission for the challenge to proceed to a full hearing in the Autumn, Mr Justice Saini described the challenge as “plainly arguable”, and noted that there was also a real issue as to the potential application of EU law in the interpretation of the Withdrawal Agreement. He noted that resolution of the issues is matter of public interest given the potentially large numbers of those with Pre-Settled Status (2.4 million people).

The IMA is the independent body set up pursuant to the Agreements to receive complaints, conduct inquiries and bring legal action on behalf of EU/EEA citizens and their family members under the Agreements.

The IMA’s statement and link to the permission decision is here.

Robert Palmer QC and Clíodhna Kelleher are instructed by the IMA in this case.

The case is being reported in the media: Independent.

Having already announced that it would certify collective proceedings brought by Dr Rachael Kent against Apple in relation to alleged abuses of dominance in the distribution of iPhone and iPad apps through the ‘App Store’ (see news 6 May), the Competition Appeal Tribunal has now handed down its judgment in relation to Dr Kent’s application for a collective proceedings order (CPO) setting out its detailed reasons for concluding that Dr Kent’s application was well-founded.

The judgment also dismisses Apple’s application to strike out Dr Kent’s claim that App Store Commissions paid by consumers who buy apps and digital content on iPhones and iPads are excessive and unfair. The CAT found that Dr Kent has reasonable grounds for making the claim and she had properly addressed the various elements of the legal test for excessive pricing.

The effect of the judgment is that all of the abuse of dominance claims advanced by Dr Kent have been permitted to proceed to trial on a collective basis.

Ronit Kreisberger QC and Michael Armitage act for the authorised class representative, Dr Rachael Kent, instructed by Hausfeld LLP.

In its ruling in Camelot UK Lotteries Ltd and ors v The Gambling Commission [2022] EWHC 1664 (TCC), the High Court has lifted the automatic suspension which prevented the Gambling Commission from awarding the Fourth National Lottery Licence.

The suspension arose from challenges to the competition to operate the Fourth Licence, which was won earlier this year by Allwyn Entertainment Ltd. Claims have been brought by Camelot, the incumbent licensee, and various companies of the IGT group, some of which were listed as key sub-contractors in Camelot’s application. The High Court (O’Farrell J) allowed the Gambling Commission’s application to lift the suspension, meaning that the handover from Camelot to Allwyn can now begin. The Camelot and IGT claims will continue, but will be for damages only. The Fourth Licence will begin in 2024 and last for a decade.

The High Court has not yet considered the question of permission to appeal.

Ligia Osepciu acts for Camelot.

Philip Moser QC and Ewan West act for the IGT claimants.

Anneli Howard QC and Will Perry act for the Gambling Commission.

The judgment has been covered by City AM, The Financial Times, The Guardian, The Telegraph and The Times.