R (RK) v London Borough of Newham (JR-2023-LON-001029)

In a judgment handed down on 19^th June 2024, Upper Tribunal Judge Reeds found – as a matter of fact – that the Applicant was of his claimed age.

Khatija Hafesji acted for the Applicant, who had arrived to the UK from Iran as an unaccompanied asylum-seeking child in October 2021. He had been assessed by the Respondent, the London Borough of Newham, to be an adult aged between 21 and 25 years, with a likely age of 22.

In April 2023, Khatija successfully obtained interim relief for the Applicant, with the effect that Newham was ordered to treat him in accordance with his claimed age pending the Tribunal’s determination of his claim.

The matter was determined following a five-day fact-finding hearing heard over February and March 2024. It is of note that the Tribunal: (i) accepted that the “short-form” assessment of the Applicant’s age carried out by the Kent Intake Unit should not be afforded “any weight” by the Tribunal either as evidence of the Applicant’s age or as evidence concerning the Applicant’s credibility; (ii) accepted that the Applicant’s failure to produce an identity document should not support an adverse inference against his claimed age in circumstances where he had a genuine fear of contacting his family in Iran; (iii) gave weight to the evidence of RK’s peers and the evidence of the Applicant’s litigation friend; and (iv) accepted the Applicant’s submission that the nature of the his relationship with his social worker, which the social worker conceded in cross-examination was not “a relationship characterised by trust”, was relevant to the weight the Upper Tribunal could attach to her evidence as to the Applicant’s age.

The Tribunal accordingly accepted that the Applicant was of his claimed age.

Khatija Hafesji represented the Applicant and was instructed by Alex McMahon of Osbornes Law Solicitors.

International Distribution Services Limited (formerly Royal Mail plc) has been served with a £878m collective action on behalf of an estimated 290,000 purchasers of bulk mail.

In 2018, Ofcom found that Royal Mail abused a dominant position in 2014 to exclude a competing provider, Whistl, from the market for bulk mail delivery services. Ofcom fined Royal Mail £50m for that conduct. Ofcom’s conclusions and the fine were upheld on appeal by the CAT and Court of Appeal.

The claim is brought on behalf of all persons who purchased or paid for relevant bulk mail services at any time after 10 January 2014. Bulk mail is a type of mail typically sent by organisations such as NHS Trusts, retailers, charities, local authorities, banks, utility companies, advertisers and publishers.  It includes bills, council tax statements, bank statements, charity fundraising appeals, advertising mail and some magazine subscriptions.

Paul Harris KC, Ben Rayment and Will Perry are instructed by Lewis Silkin LLP for the Proposed Class Representative, Bulk Mail Claim Limited.

Mr Robin Aaronson, the PCR’s sole director, was previously a member of the Competition Commission and PostComm.

For press coverage, see The Guardian.

Vicki Shotbolt, a prominent campaigner for children’s digital rights, has launched opt-out collective proceedings in the Competition Appeal Tribunal against Valve Corporation. Valve operates Steam, the world’s largest PC game distribution platform. The claim, which is brought on behalf of around 14m gamers, alleges that Valve has abused a dominant position with the result that consumers have been overcharged for games and in-game content on Steam and other platforms. Proceedings are estimated to be worth up to £656m. The claim website is here.

Robert Palmer KC, Julian Gregory and Will Perry are instructed by Milberg London LLP for the class representative. The claim is funded by Bench Walk Advisors and supported by economists from the Berkeley Research Group.

Media coverage includes the BBC, City AM and The Independent.

In the latest round of the dispute between Sports Direct and Newcastle United about the supply of the club’s replica kit, the Court of Appeal today confirmed the earlier decision of the Competition Appeal Tribunal not to grant Sports Direct an interim injunction, but found that the Tribunal had erred in finding that there was no serious issue to be tried.

Sports Direct had argued that it should be entitled to supply of Newcastle replica kit for the 2024/5 season and beyond, having been a retailer of the kit for many years, and had sought an interim injunction to secure supply in time for the planned summer launch and ahead of a trial of the matter.  In April, the Tribunal refused the application, deciding that Sports Direct had not established a “serious issue to be tried”, and that in any event the balance of convenience lay in favour of the club. It nevertheless held that the matter should proceed to a speedy trial.

Following an expedited, rolled up hearing, the Court of Appeal upheld that decision. It found that the Tribunal had been wrong to decide that there was no serious to be tried, but that this did not affect the Tribunal’s reasoning on the balance on convenience.

As regards the question of whether there was a serious issue to be tried, the Court held that the Tribunal fell into error in disregarding contested facts. It should have approached the question on the basis that “the claimant’s allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial”. The Tribunal had thus been incorrect to find that Sports Direct had not met the requisite standard. The Tribunal had been entitled though to take into account its view of the weakness of Sports Direct’s case in relation to the balance of convenience.

Alison Berridge appeared for Newcastle United, and Stefan Kuppen appeared for Sports Direct.

The Court of Appeal’s judgment is available here.

Spottiswoode v Nexans France SAS & others [2024] CAT 31

Clare Spottiswoode CBE has been authorised by the Competition Appeal Tribunal to act as the class representative in collective proceedings seeking to recover damages for any loss which flowed through to domestic electricity bills in Britain from the power cables cartel identified by the European Commission.

Fiona Banks and Jack Williams act for Prysmian, led by Jemima Stratford KC (instructed by Macfarlanes LLP).

Michael Armitage acts for NKT, led by Victoria Wakefield KC (instructed by Addleshaw Goddard LLP).

The full judgment can be read here.

On 30 April 2024, the Competition Appeal Tribunal approved a settlement for rail passengers in the ‘Boundary Fares’ collective proceedings against Stagecoach South Western Trains. The collective settlement marks the first time that consumers stand to receive compensation under the collective proceedings regime since it was introduced in 2015.

In the proceedings, Mr Gutmann, the Class Representative, alleged that Stagecoach had abused a dominant position by failing to make Boundary Fares sufficiently available, or to use its best endeavours to ensure a general awareness among customers of Boundary Fares. Boundary Fares are a type of extension ticket for use in conjunction with a TfL Travelcard. Stagecoach denies liability.

In an oral ruling, the Tribunal held that the proposed settlement, as revised over the course of the hearing, is just and reasonable. A written ruling is expected to follow.

The proceedings against London & South Eastern Railway, Govia Thameslink Railway Limited and First MTR South Western Trains continue, with a trial on the alleged abuse due to start in June 2024.

Philip Moser KC, Stefan Kuppen and Alexandra Littlewood (instructed by Charles Lyndon Ltd) represented Mr Gutmann.

James Bourke (instructed by Slaughter and May) represented First MTR.

The Chancellor of the High Court has refused an application for permission to appeal brought by Ms Julie Hunter against the ruling of the Competition Appeal Tribunal, which determined that the nature of the claim brought by Mr Philip Hammond against Amazon on behalf of UK consumers made him more suitable than Ms Hunter to act as the proposed class representative.  The Chancellor cited the remarks of Green LJ in Evans v Barclays Bank [2023] EWCA Civ 876 at [146] (a case which also concerned a “carriage” dispute as to which of two candidates should be the class representative in collective proceedings): “’The choice made by the CAT majority was a quintessential multifactorial evaluation. The CAT considered in the round a variety of factors relevant to who could conduct the proceedings best. The challenge is as to the weight the CAT attached to the various considerations as to which the CAT, as the expert in how proceedings play out at the nuts and bolts level, is vastly better placed than the Court of Appeal to form a view. The threshold for persuading the Court of Appeal to reverse the CAT’s decision is commensurately high.’ That statement of principle is equally applicable here, where the CAT has engaged in exactly that multifactorial evaluation and has preferred the methodology of Mr Hammond and his expert to that of Ms Hunter and her expert.”

Applying that approach the Chancellor concluded: “I do not consider that there was any error in the Ruling, let alone an error of law. The CAT simply preferred Mr Hammond’s expert’s methodology, a multifactorial evaluation which it was entitled to make. The proposed appeal comes nowhere near satisfying the high threshold for interference by the Court of Appeal to which Evans refers.”

The ruling on permission underlines the high bar which the losing party to a carriage dispute will have to overcome in or der to appeal to the Court of Appeal.

Philip Moser KC and Ben Rayment are instructed for Mr Hammond by Charles Lyndon Limited and Hagens Berman EMEA LLP.

Jon Turner KC is instructed by Herbert Smith Freehills LLP for Amazon.

The Tribunal today rejected an application by Sports Direct for an interim injunction requiring Newcastle United Football Club to supply it with replica kit for the 2024/5 season.

Sports Direct argued that the club was dominant in the supply of Newcastle replica kit, and that refusing to supply that kit to Sports Direct was an abuse of that dominance; alternatively, that exclusivity arrangements the club had entered into with JD Sports were anti-competitive and therefore unlawful. It further argued that if it did not have supplies of the replica kit for the 2024/5 season, it would suffer harm that could not be compensated by damages.

Applying the principles in American Cyanamid, the Tribunal considered whether Sports Direct had established a “serious issue to be tried”, and found that it had not. It was not arguable that ceasing an existing supply arrangement was – of itself and without more – an abuse, even assuming dominance. In the present circumstances Sports Direct had a low expectation of continuing supply, and the new owners of the club were entitled to revisit the distribution arrangements for the club’s replica kit. The Tribunal further found that, if an infringement of the Chapter II prohibition was arguable, it could also be argued that the exclusivity arrangements the club had entered into were improperly collusive but, conversely, that absent an arguable claim in regard to the Chapter II prohibition, it could not discern any arguable infringement of the Chapter I prohibition.

Although that finding was sufficient to dispose of the application, the Tribunal went on to consider the remaining stages of the analysis in American Cyanamid. It concluded that neither party could be adequately compensated in damages in relation to the granting or not granting of the injunction, as the potential losses were material and difficult to quantity. Finally, it determined that the balance of convenience weighed against the granting of an injunction, in particular because it would disturb the business arrangements the club had put in place for the 2024/5 season.

The Tribunal indicated that it considered that its refusal of interim relief made the need for a speedy trial of the matter more urgent, and urged the parties to give careful consideration as to how quickly a trial could come on, focussing on the necessary (and not merely desirable) procedural steps in the run up to trial.

Alison Berridge appeared for Newcastle United, and Stefan Kuppen appeared for Sports Direct.

Professor Panos Koutrakos has written an Op-Ed for EU Law Live on the recent judgment of the European Court of Justice in Case C-516/22 Commission v UK. The ECJ held that, in handing down the Micula judgment ([2020] UKSC 5), the UK Supreme Court had  ‘seriously compromised the EU legal order’: it had misinterpreted and misapplied Article 351 TFEU, violated the duty of cooperation under Article 4(3) TEU, failed to refer to the Court of Justice under Article 267 TFEU, and infringed the duty laid down in Article 108(3) TFEU.

Professor Koutrakos has written extensively on the relationship between EU law and international investment law (for instance, ‘The anatomy of autonomy: themes and perspectives on an elusive principle’, European Central Bank Legal Conference 2019, Building Bridges: central banking law in an interconnected world p90). He is also on the European Commission List of Candidates Suitable for Appointment as Arbitrators and TSD experts.

The Court of Appeal has handed down judgment today dismissing Cérélia’s appeal from the Competition Appeal Tribunal on all grounds. Both the Court of Appeal and the CAT upheld the decision of the CMA to require Cérélia to divest the Jus-Rol business that it had acquired in 2022.

The judgment is of interest in two important respects. First, it provides an analysis of the scope of judicial review by the CAT in merger cases. Second, it considers the circumstances in which the CMA is entitled to extend the statutory timetable within which it must conclude a merger investigation for “special reasons”.

Cérélia and Jus-Rol both supply dough-to-bake products to grocery retailers in the UK. Jus-Rol is the leading brand of such products, which include filo and shortcrust pastry, and bake-at-home croissants. Cérélia is the leading supplier of supermarket own-label dough-to-bake products, and also provides contract manufacturing services to Jus-Rol. The CMA found that the merger of the two suppliers would give rise to a substantial lessening of competition in the market for the wholesale supply of dough-to-bake items, and imposed a requirement of divestiture by way of remedy. Following an unsuccessful appeal to the Competition Appeal Tribunal (whose judgment of 1 September 2023 is here), Cérélia appealed to the Court of Appeal on five grounds.

By its first two grounds, Cérélia alleged that the CMA had acted irrationally and unfairly in concluding that the merged entity would not be kept in competitive check by two alternative suppliers of dough-to-bake products. In dismissing that complaint, the Court of Appeal conducted a valuable review of the scope of judicial review by the CAT in merger cases. It emphasised that the CAT was required to conduct a deep dive into the evidence, to enable it to make an informed decision as to the adequacy of the evidential underpinning of the CMA’s decision, and hence as to the legitimacy of its determination and evaluation of the facts. The Court of Appeal made clear that because of the CAT’s expertise, it was quite possible that the CAT would be critical of relatively complex evaluations by the decision maker, even where a non-specialist court might not be. In the present case, however, the CMA’s approach had been logical and rational, and there had been sufficient material before the CMA for it to find as it did. Further, the CMA’s consultation of the parties through the provision of its Provisional Findings had been fair.

Cérélia’s third ground concerned the CMA’s decision to extend time for completing its investigation for “special reasons”, under section 39(3) of the Enterprise Act 2002. The Court of Appeal held that the CAT had not erred in concluding that the CMA had been entitled to extend time on the facts of this case. It declined to lay down any canonical definition of “special”, given the fact and context specific nature of the test. It rejected Cérélia’s submission that such reasons were required to be “exceptional” in nature. The requirements of fairness were a relevant consideration which could inform the “special reasons”. Whether the reasons given by the CMA were in fact “special” was ultimately a matter of legal classification, and hence one for the CAT, but the CAT would take into account that Parliament had accorded a relatively broad discretion on the CMA.

Lastly, Cérélia’s fourth and fifth grounds concerned the question of the effect of any unlawful decision by the CAT to extend time. Since Ground 3 had been dismissed, these grounds had become academic. However, the Court of Appeal addressed them in any event. Cérélia had argued that the result of an unlawful extension was that the CMA’s final decision would have been made out of time – and that the consequence was that the merger should be treated as having been cleared. The Court of Appeal rejected that submission, holding that such a result would be inconsistent with the intention of Parliament. Instead, the CAT had a discretion as to whether to quash an unlawful decision to extend time and it would have been a rational exercise of that discretion to uphold the final decision in this case.

The Court of Appeal’s judgment is here.

Alison Berridge appeared for Cérélia.

Robert Palmer KC led for the CMA. Michael Armitage also appeared for the CMA in the CAT.