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which the CAT heard factual and expert economic evidence, the penalty has been reduced but the settlement discount has been revoked, leading to a final penalty of £18m.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

The High Court has today given judgment in a case that raised important issues as to the legal effect of regulatory decisions in EU Member States on UK commercial claims based on breach of the relevant EU regulations (either before the end of the transitional period or after it, where those EU regulations remain in effect as retained EU or assimilated law under the EU Withdrawal Act 2028).

The judgment was given in the context of preliminary issues in the “Dieselgate” group proceedings being brought in the High Court against various motor manufacturers on behalf of purchasers of diesel cars and trucks, based on allegations that the vehicles contained prohibited “defeat devices” contrary to EU rules on vehicle emissions.

In Germany, the relevant regulatory authority (the KBA) had over the relevant period issued various decisions that, according to the German manufacturers concerned, contained findings that their vehicles did not contain prohibited defeat devices.  The German manufacturers claimed that those findings precluded the English court from finding that the vehicles at issue did contain such defeat devices.

The High Court rejected the German manufacturers’ case.  It found, first, that the KBA decisions at issue were not binding on a German court determining equivalent civil claims as a matter of German law (a point that it was agreed precluded their being binding elsewhere in the EU or in the UK).  Second, on the basis that that conclusion was wrong, it found that EU law (and retained EU/assimilated law) did not require national courts faced with civil claims based on breach of EU emissions regulations to defer to findings by regulatory bodies in other EU states that there was no such breach.

The question of whether the vehicles at issue did contain prohibited defeat devices is due to be heard in autumn 2025 with judgment expected in spring of 2026.

George Peretz KC and Anneli Howard KC appeared, respectively, for Ford and Nissan.

Philip Woolfe KC and Jack Williams have been instructed in collective proceedings brought by Which? on behalf of millions of consumers in respect of Apple’s iCloud services. The case has been widely reported in the news by:

1. Which?
2. BBC
3. Sky
4. The Times
5. Daily Mail
6. The Independent
7. LBC