The Court of Appeal has today dismissed an appeal brought by Motorola against the CMA’s decision to impose a price cap on its Airwave telecoms network. Airwave is used by police, fire, ambulance and other emergency services. The CMA’s charge control, made under powers in the Enterprise Act 2002, prevents Motorola from overcharging the Government around £200m each year.

Last year, Motorola brought judicial proceedings against the CMA’s decision in the Competition Appeal Tribunal on grounds that the CMA had misunderstood the relevant competitive constraints and wrongly assessed the profitability of the Airwave network. The CAT rejected those arguments in a judgment handed down in December 2023. Motorola sought to revive those arguments before the Court of Appeal, which ordered a “rolled up” hearing.

Today’s judgment rejects Motorola’s arguments and refuses permission to appeal (as a result preventing Motorola from taking its case to the Supreme Court). Subject to a review in 2026, the cap will continue in place in 2029.

Josh Holmes KC and Will Perry acted for the CMA.

Anneli Howard KC acted for the Home Office, intervening in support of the CMA. Jack Williams also acted for the Home Office at first instance.

The case has been reported in the press, for example in City AM.

HM Revenue & Customs v Sonder Europe Ltd [2025] UKUT 00014 (TCC), 14 January 2025

The Upper Tribunal (Tax and Chancery Chamber, Mr Justice Trower and Judge Jonathan Cannan) has allowed HMRC’s appeal from Sonder Europe Ltd v HMRC [2023] UKFTT 610 (TC). The UT has held that Sonder’s supplies of short-term travel accommodation did not fall within the scope of the Tour Operators’ Margin Scheme (“TOMS”) for the purposes of VAT.

Sonder leased self-contained apartments (furnished and unfurnished) from third party landlords for terms of between two and ten years. The landlords’ supplies were exempt supplies of land, not taxable supplies of travel accommodation. Sonder granted licences to occupy the apartments for periods ranging from a single night to a month. During the relevant VAT periods, the average stay was five nights. Sonder accounted for VAT under the TOMS on its margin, namely the difference between the total amount, exclusive of VAT, payable by the customer and the cost to Sonder payable to the landlord. HMRC contended that Sonder’s supplies did not fall within the TOMS and that Sonder was required to account for VAT under the ordinary rules at the standard rate on the full value of the consideration received.

The FTT held that the TOMS applied and allowed Sonder’s appeal. The UT held that the FTT erred in law in failing to have regard to the requirement under the PVD that the bought-in supply be for the “direct benefit” of the traveller when interpreting and applying Article 3(1)(b) of the UK TOMS Order. The UT also held that the FTT mischaracterised the precise nature of the supplies to which the test is to be applied: although the FTT (correctly) compared the nature and extent of the physical changes made to the actual apartments, it did not compare the alterations to the full bundle of rights and interests supplied to Sonder with those which were supplied by Sonder to its customers.

Andrew Macnab acted for HMRC.

Read the Upper Tribunal’s decision here.

Read the FTT’s decision here.

On 14 January 2025, the UK’s Competition Appeal Tribunal (CAT) handed down its Judgment (available here) in Riefa v Apple & Amazon with a landmark victory for Amazon, represented by Meredith Pickford KC and David Gregory of Monckton Chambers, and Apple.

The proposed class representative, Professor Riefa, sought a collective proceedings order on behalf of consumers against Amazon and Apple. The claim involved allegations that Amazon and Apple had coordinated so as to distort the price of Apple products online. It was strongly resisted by Amazon and Apple, and after two contested hearings, certification was refused by the CAT.

The CAT has never before refused certification with no second chance being given.

The Tribunal found that Professor Riefa failed to satisfy the “authorisation condition” – that is, to show that it was “just and reasonable” for her to act as a representative in the proceedings. This stemmed in large part from concerns that the Tribunal had about the ability of Professor Riefa to protect the interests of the class robustly and independently. A contributing factor to the Tribunal’s assessment was the evidence of Professor Riefa in cross-examination by Meredith Pickford KC. Cross examination of the proposed class representative, which  Amazon and Apple had applied to do in relation to the proposed funding arrangements, and Professor Riefa’s understanding of them, was another legal first before the CAT in applications for collective proceedings.

The lesson here for those wishing to bring collective proceedings is found in the Judgment at [115]: “A class representative is not, and cannot be, merely a figurehead for a set of proceedings being conducted by their legal representatives, but must act as the independent advocate for the class. Someone who chooses to act as a class representative therefore carries a heavy responsibility to ensure that the proceedings are conducted, in all respects, in the best interests of the class. The Tribunal will accordingly hold them to a high standard.”

Barristers at Monckton Chambers have unrivalled breadth and depth of experience in competition law collective proceedings.  They are adept in advising potential class representatives and defendants alike on how to maximise their chances of success before the Tribunal in the light of the developing jurisprudence in this fast-moving area of law.

Meredith Pickford KC and David Gregory, instructed by James Norris-Jones and Paul Stuart of Cleary Gottlieb Steen and Hamilton LLP acted for Amazon.

The Competition Appeal Tribunal (Hodge Malek K.C.) has handed down judgment on an application in the Trucks 2^nd Wave Proceedings in which it had to consider the appropriate approach to requests for information/disclosure in proceedings which are subject to the type of “expert-led” disclosure process being used in those proceedings when specific claims between certain defendants and certain claimants have settled. The application was brought by a subset of claimants against the Daimler defendants (with whom those claimants had settled), for data requested by an expert they had instructed. There were two main issues raised by the application: first, whether the application was precluded by the terms of the settlement agreement between those claimants and Daimler; and second, if Daimler could be ordered to provide the data, whether the claimants should pay Daimler’s costs of providing that data.

The Tribunal explains in its judgment that disclosure in the 1^st Wave Trucks Proceedings was both a challenge and expensive. It was carried out using a conventional approach of being led by the solicitors for the parties, disclosure reports and lists being prepared, the use of Redfern Schedules, and a flexible approach by the Tribunal in the determination of disclosure application (see [2020] CAT 3, [40] and [2020] CAT 13 at [3]-[11]).  The Tribunal noted that the challenges as to case management and disclosure for Wave 2 are even greater than for Wave 1 given the multiplicity of parties.  That formed the background to the Tribunal’s decision to adopt a novel approach in the 2^nd Wave Proceedings of so-called of “expert-led”, rather than lawyer-led, disclosure.

In its Judgment on the application the Tribunal held:  “It must be emphasised that such an expert-led approach is unlikely to be suitable for the majority of cases before the Tribunal. It reflects the general approach of the Tribunal that disclosure must be tailored to the specific needs of individual cases. What may be suitable for a multi-faceted case dominated by expert evidence with numerous parties and issues, may not be suitable for most cases where a more conventional approach may be more productive and hopefully less expensive. In any large-scale litigation before the Tribunal it is important for the Tribunal to have overall control of the disclosure process so that it is confined to what is necessary and proportionate. A ‘no stone unturned’ approach to disclosure is in no one’s interest and costs should not be allowed to escalate unnecessarily in disclosure exercises. Lawyers for the parties using their experience in disclosure exercises are expected to take a major role in managing the process and to cooperate with each other.”

Any disputes lawyers who thought their role in disclosure was potentially under threat in proceedings before the Tribunal will need to think again.  It is clear that the Tribunal considers that the parties’ lawyers play a crucial role in managing the disclosure process and in containing the substantial costs associated with disclosure within proportionate limits.

In dismissing the Claimants’ application the Tribunal found that the application was one that was properly to be characterised as having been made within the claims by the claimants instructing the expert who was seeking the data. On that basis, the application was found to be precluded by the terms of the settlement agreement. The Tribunal also found that, even if the settlement agreement had not precluded the application, it would have been disproportionate to require Daimler to provide the data unless the claimants making the application (i.e. the claimants by whom the expert was instructed) agreed to pay Daimler’s costs of so doing. That was so even though the application was not technically a third party disclosure application. In awarding costs in favour of Daimler the Tribunal considered in assessing the amount of costs payable that both parties had acted reasonably on the application, given there was a bona fide dispute as to the construction of the Settlement Agreement as well as one relating to the nature of the disclosure exercise in itself.   The Tribunal cautioned that it did not want to have a situation whereby disclosure applications like the present are deterred for fear of the size of costs awards.

Alan Bates instructed by Edwin Coe LLP represented the Claimants

Ben Rayment instructed by Macfarlanes represented Daimler.

The Tribunal’s Judgment can be found here

The CAT has today handed down judgment in a Competition Act 1998 appeal brought against the CMA by the leading demolition services provider Keltbray.

In March 2023 the CMA published its decision “Supply of demolition and related services”, which fined ten leading suppliers of demolition services for colluding in tenders for contracts to demolish various buildings in England. The Infringements took the form of “cover bidding”, which involves a company submitting a price in a tender process not designed to win the contract, but which has been decided upon in conjunction with a competitor in the process, in order to give the appearance of competition.

Keltbray entered into a settlement agreement with the CMA in 2022, in which it admitted liability for eight of the infringements in question and accepted that the CMA could impose a maximum penalty of £20m. As a result of the agreement, Keltbray received a 20% settlement discount, which reduced its penalty to £16m.

Following a week-long trial, during which the CAT heard factual and expert economic evidence, the penalty has been reduced but the settlement discount has been revoked, leading to a final penalty of £18m.

Grounds 1 and 2 of the appeal concerned the CMA’s definition of the relevant market for the purposes of calculating Keltbray’s penalty. The CAT rejected both grounds. Under the former, the CAT accepted that it was reasonable for the CMA to define the market in a way that recognised potential wider effects of Keltbray’s conduct beyond the infringing tenders in question, including in circumstances where Keltbray had not sought to challenge the CMA’s conclusion that its conduct amounted to a by object infringement. Under Ground 2, the CAT rejected Keltbray’s arguments, supported by expert economic evidence, that the CMA should have segmented the demolition services market according to the complexity of the services provided.

Ground 3 concerned the proportionality of the overall penalty. The CAT adopted a different view to the CMA of the seriousness of Keltbray’s conduct and the relevance of Keltbray’s low profit margins. It therefore decreased the overall penalty by £2m.

Finally, the CAT allowed the CMA’s application to revoke the 20% settlement discount, concluding that there was no unfairness in holding Keltbray to its original bargain and that the discount protected important policy considerations relating to the settlement process.

Philip Woolfe KC and David Gregory acted for Keltbray.

Rob Williams KC and Will Perry acted for the CMA. Daisy Mackersie also acted for the CMA at an earlier stage of proceedings.

Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants, Court of Appeal, Judgment 19 December 2024; [2024] EWCA Civ 1559

This is an appeal judgment in the Multilateral Interchange Fees (MIFs) Umbrella litigation from a decision on limitation made by the Competition Appeal Tribunal (the CAT). The issue was whether the EU law principle referred to as the “Cessation Requirement” applies in pre-Brexit claims.

The CAT had found that it was not bound by the post-completion day CJEU case of Volvo (Case C-267/20) and that Volvo was not authority for the Cessation Requirement being part of EU law. It also held it was bound to follow the Court of Appeal’s pre-Brexit decision in Arcadia Group Brands v Visa which had decided that EU law did not impose any Cessation Requirement upon English law limitation rules. The MIF Umbrella Claimants appealed.

Between the CAT and Court of Appeal hearings the CJEU gave judgment in Heureka v Google (Case C-605/21) and the UKSC gave judgment in Lipton v BA Cityflyer [2024] UKSC 24.

The Appellants contended that Heureka decided that the Cessation Requirement had always been a binding rule of EU law arising out of the general EU law principle of effectiveness. The Court of Appeal agreed with the Appellants on that point.

The majority in Lipton favoured what the UKSC called the “complete code analysis” of the Withdrawal Act, whereby a cause of action based on facts which occurred before completion day is brought forward as part and parcel of the bringing forward of the law itself under whichever of sections 2, 3 or 4 of the Withdrawal Act is relevant and is “retained EU law”, so that section 6 of the Withdrawal Act applies and the court is not bound by post-completion day CJEU case law, but may have regard to it.

Without revisiting the point, the Court of Appeal held it should follow Lipton’s complete code analysis, and that it would leave it to the Appellants to seek to persuade the UKSC to hear further debate between the complete code analysis and an Interpretation Act analysis.

The Court of Appeal held therefore that it was not bound by Volvo or Heureka, as post-completion day CJEU decisions. Further, it held that Volvo and Heureka reflected a “departure” for EU law, as no pre-completion day CJEU authority had “made it clear” that the EU law principle of effectiveness would always require that a limitation period for a claim founded on articles 101 and 102 TFEU only began to run once the infringement had ceased. The Court of Appeal also held that, like the CAT, it was bound by Arcadia to hold that the Limitation Act 1980, as it applies to competition claims, accords with the EU law principle of effectiveness, which would also be a matter for the UKSC to revisit.

Philip Moser KC and Philip Woolfe KC of Monckton Chambers acted for the MIF Umbrella Claimants, instructed by Scott + Scott and Stephenson Harwood.

William Buck and Jen Coyne, led by Clare Stanley KC and instructed by Tom Bolam and Cecilia Ricks at Fladgate LLP, acted for the First Appellant in this important appeal on the application of vendor-purchaser constructive trusts and the disposal of beneficial interests in personal property.

The case concerned whether a beneficiary may dispose of his entire beneficial interest in personal property (shares) to the trustee legal owner orally, or conversely whether s. 53(1)(c) of the Law of Property Act 1925 (“LPA 1925”) prevents disposal without signed writing.

The Supreme Court has held that a vendor-purchaser constructive trust of scintilla temporis arises between the beneficiary and trustee, which itself effects the disposal of the beneficial interest (rather than providing interim protection and giving rise to a right to apply for specific performance to convey such beneficial interest) (§§30-36). By s. 53(2), because the disposal is by way of constructive trust, it falls outside the scope of s. 53(1)(c) LPA. The agreement may be made orally.

The Supreme Court also confirmed, dismissing the Respondents’ application for permission to cross-appeal, that s. 53(1)(c) LPA is not confined solely to equitable interests in land, but applies to personal property.

Judgment is available here.

The Competition Appeal Tribunal has dismissed an application by ValueLicensing against Microsoft for summary judgment in respect of certain defences by Microsoft in the ongoing proceedings concerning alleged breaches of competition law in relation to the selling of pre-owned software licenses. The defences under Article 101(3) TFEU / objective justification are part of Microsoft’s broader defence to ValueLicensing’s claim, and secondary to Microsoft’s position that there was no infringement in the first place. The application for summary judgment was dismissed in a unanimous judgment of the full Tribunal.

The judgment is available here.

Nikolaus Grubeck and Kristina Lukacova acted for Microsoft, instructed by CMS.