In its ruling in Le Patourel v BT [2022] CAT 21, the Competition Appeal Tribunal considered the transfer of collective proceedings to a different panel following certification.

Paragraph 6.7 of the CAT’s Guide to Proceedings 2015 envisages that the certifying ‘Case Management Tribunal’ will transfer proceedings to a differently constituted ‘Trial Tribunal’ and will therefore “bow out … to be recalled if, and only if, there is a collective settlement to be approved.” The CAT, however, considered that “in this case, and perhaps in others, there is, in our view, a much simpler solution. This is that the current Tribunal will case manage the claim through to trial and conduct the trial itself. The only issue is if a collective settlement is proposed. But at that stage, the President of the CAT can be requested to, and can appoint, a separate Tribunal panel to consider the settlement.” It held that “the Guide itself cannot rule out the proposed alternative solution”, there was nothing in the CAT Rules to prevent it, and “there are good reasons connected with the overriding objective for taking this course.”

The Tribunal proceeded to make directions to trial, which is expected to take place in early 2024.

The ruling is available here.

Ronit Kreisberger QC, Nikolaus Grubeck, and Jack Williams act for the class representative, Justin Le Patourel, instructed by Mishcon de Reya.

Melanie Hall QC led Brendan McGurk and David Gregory for HMRC, in Biffa and others v HMRC, a test-case for the UK landfill sector concerning whether landfill tax was payable on ‘fluff’ layers within landfill sites.

The challenge is one of the biggest tax repayment claims of the last 5 years concerning an issue on which Melanie Hall has been advising HMRC for almost nine years.

Biffa and other landfill site operators claimed that the waste in the so-called “fluff layer” – present at the top, sides and bottom of all UK landfill cells – was not disposed of as waste but “used” in the engineering of the cells. The claimed consequence was that landfill tax was not payable on that waste. Over £3 billion of tax was at stake.

On 22 April 2021, the Court of Appeal upheld HMRC’s appeal on all grounds of appeal against the Upper Tribunal’s decision. In so doing, the Court of Appeal clarified the law on “use” for the whole sector. By its decision judgment the Supreme Court refused the application for the permission to appeal on the basis that the application had failed to show any arguable point of law. The Court of Appeal’s judgment is therefore the last word on this issue, providing greater clarity on the meaning of its judgment in WRG.

The Monckton team was instructed throughout this long-running case by Richard Shaw, Senior Lawyer in the Customs, Excise and Environmental Taxes Litigation Team.

The Competition Appeal Tribunal has certified opt-out collective proceedings brought by UK consumer charity Which? against US-based wireless telecoms company Qualcomm Incorporated. Which? alleges that Qualcomm’s breaches of competition law inflated the royalties paid by smartphone manufacturers for Qualcomm’s technology, leading to higher prices for consumers. Further details of the claims can be found here.

In a unanimous judgment, the Tribunal held that the claims meet the criteria for certification and should be allowed to proceed. Which? will now represent a class of approximately 29 million UK consumers who have purchased qualifying Apple or Samsung smartphones since October 2015.

Which? is represented by Jon Turner QC, Anneli Howard QC, Michael Armitage and Ciar McAndrew. The counsel team is instructed by Nicola Boyle, and Lucy Rigby of Hausfeld & Co. LLP.

Alexandra Littlewood acted for Qualcomm, instructed by Quinn Emanuel.

Today, the Court of Appeal unanimously dismissed an appeal by BT against the Competition Appeal Tribunal’s certification, on an opt-out basis, of collective proceedings on behalf of over 2 million landline customers for alleged excessive pricing. BT’s appeal was dismissed in full.

The Court of Appeal’s judgment ([2022] EWCA Civ 593) is available here. It is a landmark decision setting out the legal test for certifying collective proceedings on an opt-out basis.

Ronit Kreisberger QC, Nikolaus Grubeck, and Jack Williams represented the successful class representative, Justin Le Patourel, instructed by Mishcon de Reya.

The Competition Appeal Tribunal yesterday took the unprecedented step of granting certification ‘on the spot’ for collective proceedings against Apple in relation to abuse of dominance claims concerning the distribution of iPhone and iPad apps through the ‘App Store’.

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

Between 2 May – 4 May 2022, Josh Holmes QC and Jack Williams made oral representations at the General Court of the European Union on behalf of Google in an appeal against a decision of the European Commission imposing a 1.5 billion euro fine on Google in connection with its ad intermediation service, Adsense for Search.

The case (T-334/19) is an important one concerning the meaning and application of the concept of exclusivity obligations within the Article 102 TFEU framework, and the Commission’s legal burdens and investigative duties.

Josh and Jack were instructed by Claire Jeffs of Slaughter and May. Daniel Beard QC was also instructed during the written part of the proceedings.

R (Good Law Project and Another) v Secretary of State for Health and Social Care

On Friday 29 April 2022, Lord Justice Coulson refused the Good Law Project permission to appeal against the Order of O’Farrell J dated 15 February 2022 in the group of judicial review challenges often known as ‘PestFix’. This was a ‘family’ of JR challenges, heard together, in respect of the award of various PPE supply contracts by the Secretary of State to PestFix, Clandeboye and Ayanda. In a judgment of 12 January 2022 ([2022] EWHC 46 (TCC)), O’Farrell J rejected the claims. See case news item of 12 January 2022.

The Good Law Project sought to appeal on six grounds. Permission was refused on all grounds. Coulson LJ stated that there was an “overarching reason” why the application must be refused namely that the grounds did not suggest that the judge made any errors of law or principle, but were just “an attempt to reargue the facts”.

The appellants sought to appeal the trial judge’s s.31(2A) SCA 1981 ruling. O’Farrell J found, in respect of the PestFix and Ayanda contracts, that the respondent had acted unlawfully in conferring preferential treatment by allocating them to a ‘High Priority Lane’. However, she went on to find that it was highly likely that, even if they had not been allocated to that Lane, the outcome would not have been substantially different and the contracts would still have been awarded to PestFix and Ayanda. Refusing PTA, Coulson LJ emphasised that the s.31(2A) test is “fact-sensitive and ultimately a matter for the trial judge”.

This brings to an end this high profile and significant litigation, which was named as one of The Lawyer Top Twenty cases of 2021 and described as “one of the most notable cases to emerge from the pandemic”.

Michael Bowsher QC, Ewan West, Imogen Proud, Khatija Hafesji and Alfred Artley acted for the Secretary of State, instructed by GLD.

Alan Bates acted for Pestfix, instructed by Osborne Clarke, and acted for Ayanda, instructed by Lewis Silkin.

On 30 March 2022, in the most recent judgment in the long-running “Air Cargo” damages litigation, the European General Court upheld, in part, Cathay Pacific’s appeal and partly annulled the Commission’s 2017 decision. This resulted in cut in the fine imposed on the airline, from €57.12m to €47.14m.

The judgment upheld one of Cathay Pacific’s grounds of appeal and annuls the Commission decision in part, on the basis that penalising Cathay Pacific for the infringement in respect of intra-EEA routes and EU Switzerland routes was in breach of the rules on limitation.

British Airways, Japan Airlines, Air Canada, SAS Cargo, LATAM and LAN Cargo also secured partial annulment. However, the General Court upheld the European Commission fines against Air France, KLM and Martinair, along with Cargolux, Singapore Airlines, and Singapore Airlines Cargo, as well as Lufthansa.

See judgment in Case T-343/17 Cathay Pacific v European Commission EU:T:2022:184 here.

See the CJEU’s press release here.

Ronit Kreisberger QC and Nikolaus Grubeck represented Cathay Pacific, instructed by Martin Rees and Erling Estellon of Squire Patton Boggs.

Josh Holmes QC represented the European Commission.

On 30 March 2022, in the most recent judgment in the long-running “Air Cargo” damages litigation, the European General Court upheld, in part, British Airways’ appeal and partly annulled the Commission’s 2017 decision. This resulted in a near 20% cut in the airline’s €104 million fine for the airline.

In 2010, after the Commission found a group of airlines guilty of price fixing for air cargo services, a large number of damages claims by air cargo shippers were brought together against British Airways. Since that time Jon has been retained as the lead counsel for British Airways, which brought in a group of other airlines as contribution defendants. The long-running damages litigation came to an end in 2019, but an arm of the litigation involved appeals against the European Commission’s infringement decision in the European courts.

This most recent judgment upheld one of British Airways’ grounds of appeal and annuls the Commission decision in part, in so far as it finds that they participated in the element of the infringement relating to the refusal to pay commission on the surcharges.

Japan Airlines, Air Canada, Cathay Pacific, SAS Cargo, LATAM and LAN Cargo also secured partial annulment. However, the General Court upheld the European Commission fines against Air France, KLM and Martinair, along with Cargolux, Singapore Airlines, and Singapore Airlines Cargo, as well as Lufthansa.

See judgment here

Jon Turner QC represented British Airways, instructed by Slaughter and May.

Alan Bates represented the European Commission.

George Peretz QC acted for the European Commission in both the LAN Chile:LATAM and Air Canada appeals.

The Competition Appeal Tribunal has refused to certify two applications for collective proceedings on an “opt-out” basis.

The two competing applications were brought by O’Higgins (represented by Scott+Scott) and Mr Evans (represented by Hausfeld & Co). Both advanced claims against major banks seeking compensation for alleged losses sustained by buyers and sellers of G10 currencies in foreign exchange markets.

The Tribunal, by majority, upheld the objection of the banks and refused to certify the applications on an “opt-out” basis. It also granted three months to O’Higgins and Mr Evans to decide whether or not to amend their applications so as to proceed on an “opt-in” basis.

Collective proceedings which are certified on an “opt-in” basis will usually be much smaller, and hence much harder to fund, than proceedings which are certified on an “opt-out” basis. Indeed, both O’Higgins and Mr Evans submitted to the Tribunal that forcing them to proceed on an “opt-in” basis would have the effect of stifling their claims.

A link to the judgment is here.

Ronit Kreisberger QC and Thomas Sebastian acted for MUFG (instructed by Herbert Smith Freehills).

Daniel Beard QC, Rob Williams QC and Daisy Mackersie acted for JP Morgan (instructed by Slaughter and May).

Josh Holmes QC appeared on behalf of the NatWest/RBS Respondents in Cases 1329 and 1336 (instructed by Macfarlanes LLP).