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.

In a judgment handed down on 25 November 2024 the High Court has determined that the London Borough of Havering unlawfully excluded EM, a victim of serious domestic abuse, from its register for social housing.

LB Havering argued that EM did not qualify for inclusion on its housing register because she did not meet its residence requirement (which required applicants to have lived in its area for 6 years) and that she did not come within any of the exceptions to its residence requirement, each of which was said by Havering to be subject to an overarching requirement that the applicant be resident in Havering.

The Court determined that the council’s interpretation of its housing allocation scheme was wrong and that, correctly interpreted, EM qualified for multiple exceptions to the residence requirement, and that these exceptions were not subject to any qualifier in relation to location.

The judgment is available here.

Clíodhna Kelleher (instructed by Bea Patrick at Hopkin Murray Beskine solicitors) acted for EM.

In a judgment issued on 22 November the CAT has ruled that Nikki Stopford will be permitted to proceed with collective proceedings against Google on behalf of millions of UK consumers. The claims seeks damages from Google for the alleged harm arising from:

• The “Android Conduct”, a follow-on claim arising out of the European Commission’s Decision in Google Android in 2018, which relates to arrangements dating from at least 2009, wherein Google permitted the Play Store to be installed on Android mobile devices only if Google’s own search app was also installed, together with Google Chrome, on which Google Search is the default search engine.
• “iOS Conduct”, a standalone claim, which relates to Google’s agreements with Apple under which Google is awarded the exclusive default search engine status on Safari, which is pre-installed on Apple’s devices, in return for a share of Google’s corresponding mobile search advertising revenues.

The conduct is alleged to have caused an increase in the price of goods sold by businesses that advertise on Google.

The judgment follows a two day hearing in September at which Ms Stopford was represented by Ben Lask KC and Google was represented by Meredith Pickford KC, Josh Holmes KC and David Gregory.

A copy of the judgment is here.

Drew Holiner has been appointed to the Panels of Arbitrators of the Dubai International Arbitration Centre (DIAC) and the Russian Arbitration Centre (RAC).

DIAC commenced operations in 1994 as an independent, not-for-profit organisation, and has since established itself as the Gulf region’s leading arbitration institution.  In 2023, DIAC administered 355 cases from 49 different countries.  Since its inception, DIAC has administered nearly 5,000 cases of varying value, complexity, and economic sectors. The combined amounts in disputes of total registered cases has reached more than AED 80 billion, the equivalent of USD 21.8 billion.  Read more here.

The RAC was founded in 2016, and has since emerged as one of Russia’s leading arbitration institutions.  In 2023 the RAC administered 362 cases involving parties from 15 different countries.  In July 2023, the RAC opened its first overseas office at the Dubai International Financial Centre (DIFC).  Drew sits on the RAC’s specialist panels for International Arbitration and Financial Disputes. Read more here.