The CAT has certified collective proceedings brought on behalf of 8.9 million Sony PlayStation UK customers for damages as a result of alleged supra-competitive pricing of games and add-on content purchased through the PlayStation Store.

The judgment is the first to address a PCR’s funding arrangements following the judgment of the Supreme Court in PACCAR. The CAT found the PCR’s revised funding arrangements would be enforceable.

The CAT also ruled for the first time that its jurisdiction to make a CPO pursuant to section 47B of the Competition Act 1998 is limited to claims which exist as at the date of the Claim Form. Certification is therefore subject to amendment of the class definition to remove so-called “future claimants” whose alleged losses post-date the filing of the Claim Form.

Robert Palmer KC, Fiona Banks and Antonia Fitzpatrick represented the Class Representative, Alex Neill Class Representative Limited, instructed by Milberg London LLP.

Daniel Beard KC represented the Defendants, Sony Interactive Europe Limited and Sony Interactive Entertainment Europe Limited, instructed by Linklaters LLP.

The judgment is available here.

The Competition Appeal Tribunal has handed down judgment in Sky v Ofcom [2023] CAT 70.

The Tribunal upheld Ofcom’s construction of section 32(2) and (2A) of the of the Communications Act 2003, which underpinned Ofcom’s Decision that Sky’s pay TV services, which rely in whole or in part on a digital satellite transmission service, constitute an electronic communications service (“ECS”) within the meaning of that section, and that Sky was therefore required to send end-of-contract notifications to customers of its pay TV services. It found that “as a matter of construction of section 32(2) and (2A), it is necessary first to exclude the element of a service which is a “content service” before considering whether the rest of the service falls within the definition of section 32(2A)(c) as “consisting in, or having as its principal feature, the conveyance of signals”.”

On that basis, the Tribunal concluded that Sky’s pay TV service is an ECS within the meaning of section 32(2) and (2A)(c) of the 2003 Act. It held that Ofcom erred in not considering in the Decision whether the element of conveyance of signals predominates over the Other Non-Content aspects of the Sky Pay TV service, but that, in any event, it does so predominate. As such, the overall conclusion in the Decision was correct.

The judgment is available here.

Meredith Pickford KC and David Gregory acted for Sky.

Josh Holmes KC, Julianne Morrison and Nikolaus Grubeck acted for Ofcom.

In a judgment handed down on Friday 10 November 2023, Mr Justice Roth has dismissed the claims made by Phones 4U against the mobile network operators EE, Telefonica and Vodafone, and those made against EE’s former parent companies Orange and Deutsche Telecom. The Judgment is a rare judgment on a standalone competition claim, and follows a trial in the Competition List of the High Court which ran from May to July 2022. The Judgment, which runs to 208 pages, contains discussion of a number of important topics for competition lawyers including the extent to which collusion may occur in a bilateral exchange where one party declines to participate, public distancing, the rebuttal of the presumption of conduct on the market, document preservation, the drawing of adverse inferences from the absence of witnesses and the importance of competition law compliance policies.

Monckton members acted for two of the successful defendants: Meredith Pickford KC and David Gregory for EE and Rob Williams KC for Vodafone. The judgment and the judge’s short summary of the judgment can be found here and here.

The Competition Appeals Tribunal (CAT) has today certified opt-out collective proceedings brought on behalf of millions of iPhone users against the Apple corporate group. The Class Representative, consumer champion Justin Gutmann, alleges in summary that Apple abused a dominant position in the way it introduced software updates for approximately 34 million iPhones. These updates were designed to reduce the rates of “unexpected power offs” experienced by users. It is alleged that Apple concealed from users that the updates considerably slowed down the iPhones in certain circumstances. The claim is estimated to be worth at least £853 million and follows similar class actions and regulatory proceedings brought against Apple around the world.

The CAT’s unanimous judgment concludes that Mr Gutmann has a realistic prospect in making good his case at trial and that the claims should be certified (subject to the resolution of any funding issues arising from the Supreme Court’s judgment in PACCAR). In reaching this conclusion, the CAT dismissed Apple’s strike out and summary judgment applications concerning the evidential basis for the claim and the period following an Apple apology published in December 2017, challenges to Mr Gutmann’s methodology for assessing loss, and a challenge to the suitability of Mr Gutmann to bring the claim.

Philip Moser KC, Anneli Howard KC, Stefan Kuppen, Will Perry and Natalie Nguyen represented the successful Class Representative, Justin Gutmann, and were instructed by Charles Lyndon.

The judgment is available here, and has been covered by Forbes, Reuters, Sky News, the Evening Standard and the Independent.

Karpichkov v National Crime Agency [2023] EWHC 2653 (KB)

The King’s Bench Division today dismissed an application by the National Crime Agency to strike out the claim brought by a former KGB double agent for breach of his data protection rights and misuse of his private information.

The Claimant – who the Court has directed may only be identified by his former name Boris Karpichkov – formerly worked for the KGB and, following the end of the Cold War, for the KGB and Latvian security services as a double agent. Fearing for his life, he fled Latvia with his family in 1998 and claimed asylum in the UK. He was granted British citizenship in 2010 under a new, undisclosed identity.

In 2019, Mr Karpichkov was arrested by Kent Police pursuant to a European Arrest Warrant issued by the Latvian authorities. In 2020, the Westminster Magistrates’ Court dismissed refused his extradition on the basis that it would breach his Convention rights, noting, among other things, that Mr Karpichkov had “an abundance of dangerous enemies in both Latvia and Russia“. In the course of processing the extradition request, however, the National Crime Agency disclosed Mr Karpichkov’s current name and address to the Latvian authorities.

In 2022, Mr Karpichkov brought a claim against the National Crime Agency, arguing that its disclosure of his current name and address to the Latvian authorities was not only unnecessary under the Schengen Information System then in force but also in breach of his Convention rights, his right to protection of his personal data and a misuse of his private information. Earlier this year, the Agency applied to strike-out Mr Karpichkov’s claims and obtain summary judgment against him, arguing that it was bound by the terms of EU law to disclose details of his current identity and address.

In today’s judgment, High Court Master McCloud dismissed the Agency’s applications, ruling that it was at least arguable that the Agency should have first considered whether its disclosures were truly “required”, taking into account Mr Karpichkov’s rights under the EU data protection legislation, the ECHR and EU Charter of Fundamental Rights.

Eric Metcalfe is instructed by Deighton Pierce Glynn for the Claimant, Mr Karpichkov.

Julianne Kerr Morrison was instructed on behalf of Mr Karpichkov at an earlier stage of the proceedings.

The judgment is available here and has been reported by Reuters and Yahoo news.

On 17 October 2023, the Competition Appeal Tribunal approved the consolidation of two applications for a collective proceedings order against Google, thereby avoiding a carriage dispute. The two proceedings concerned Google’s conduct in the ad tech sector and sought substantial damages on behalf of publishers. The proposed class representatives, Mr Arthur and Mr Pollack, agreed to consolidate their applications following negotiations between themselves and their teams, including their funders and insurers, and this step has now been approved by the CAT, subject to certification of the claims which the CAT will decide next year. The consolidated application will be pursued by Ad Tech Collective Action LLP, of which both the individual representatives are members, along with Kate Wellington. This is the first time in the UK that a carriage dispute has been resolved through a negotiated settlement, though the practice is common in other countries such as Canada that have class action regimes.

Gerry Facenna KC, Julian Gregory, Alison Berridge and Nik Grubeck represent Ad Tech Collective Action LLP, instructed by Hausfeld & Co. LLP, Humphries Kerstetter LLP and Geradin Partners Limited. The consolidated claim is being funded by Fortress. Meredith Pickford KC represents Google, instructed by Herbert Smith Freehills LLP.

Robert Palmer KC, Julian Gregory and Will Perry are working to prepare opt-out collective proceedings against Valve Corporation. Valve operates Steam, one of the world’s largest digital video game distribution platforms. The claim, which will be issued in the Competition Appeal Tribunal in the coming weeks, will allege that Valve used its market power in a way which has led to consumers being overcharged for games and in-game content distributed via Steam.

Robert, Julian and Will are acting for Proposed Class Representative, Vicki Shotbolt, a prominent campaigner for children’s digital rights. They are instructed by Milberg London LLP (see their press release here) and are working with funders Bench Walk Advisors, and economists from the Berkeley Research Group.

In an unusual claim in the context of a commercial dispute, the Chancery Division made an order for an interim injunction in action for trespass and harassment against a well-known firm of debt collectors.

The claimant, an IT services provider, was in dispute with one of its suppliers over a number of invoices. Despite having no judgment in its favour or writ of execution, the supplier instructed a debt collection agency to enforce the alleged debt. The debt collection agency had previously featured in the Channel 5 series ‘Can’t Pay? We’ll Take It Away’.

Although warned not to do so, the debt collection agency sent bailiffs to both the IT company’s London office and the home of its managing director. The company therefore issued proceedings for trespass and harassment against the debt collection agency, and an interim injunction was granted preventing the bailiffs from coming with 10 metres of the company’s business address and its director’s home, communicating with the company other than through solicitors, or otherwise harassing it.

Alfred Artley acted for the successful claimant, instructed by Sajjid Kurmani of Freeths LLP.

R (NoteMachine UK Ltd) v the Payment Systems Regulator [2023] EWHC 2522 (Admin)

The High Court has today handed down its long-awaited judgment in a judicial review challenge which clarifies the law governing the jurisdiction of the Payment Systems Regulator (PSR), and specifically how it deals with complaints from participants in payment systems.

NoteMachine, an ATM operator, challenged a family of decisions taken by the PSR within its overall decision not to pursue an investigation in response to an application made by NoteMachine. NoteMachine had complained to the PSR about LINK decreasing the Interchange Rate which NoteMachine receives from cash withdrawals.

NoteMachine issued a claim with five grounds of challenge, of which four were given permission. The grounds given permission alleged that the PSR had made three narrow errors of law, and one error of fact and law. The grounds were:

1. The PSR failed to apply s.108 of the Financial Services (Banking Reform) Act (FSBRA) correctly in concluding that it was required to deal with NoteMachine’s application under Regulation 103 of the Payment Services Regulations 2017 (PSRs 2017) instead of under s.57 FSBRA.
2. When considering Regulation 103 PSRs 2017, the PSR failed to define and apply the concept of “discrimination” correctly as required by Regulation 103(3)(b) PSRs 2017.
3. When deciding not to take further action in relation to the issues which the Claimant raised concerning the Competition Act 1998 (CA98), the PSR erred in its approach to s.62 FSBRA.
4. In a letter of 12 March 2021, when deciding not to take further action in relation to the issues which the Claimant raised concerning CA98, the PSR erred in fact and in law by failing to appreciate that CA98 applies equally to Multilateral Interchange Fees which are set too low.

Sweeting J found that all four grounds failed following the substantive hearing, which took place on 16-17 March 2022. In addition, he held that s.31(2A) of the Senior Courts Act 1981 applied to preclude relief in relation to grounds 1, 4 and 5.

Michael Bowsher KC acted for NoteMachine, instructed by Hill Dickinson LLP.

Kassie Smith KC and Imogen Proud acted for the Payment Systems Regulator, instructed by Kingsley Napley.

The full judgment can be read here.

Intelligent Money Ltd V Hm Revenue & Customs [2023] UKUT 00236 (TCC), 26 September 2023.

The Upper Tribunal (Tax and Chancery Chamber), Mr Justice Rajah and Judge Ashley Greenbank, has dismissed Intelligent Money’s (“IML”) claim that fees it received in connection with the provision, operation and administration of self-invested personal pension schemes (SIPPs) were consideration for exempt supplies of “insurance transactions” within the meaning of Group 2 of Schedule 9 to the Value Added Tax Act 1994 (“the Insurance Exemption”). The Upper Tribunal upheld the decision of the First-tier Tribunal, [2022] UKFTT 0338 (TC), albeit for reasons that differed in some respects.

A SIPP is a tax-efficient means whereby individuals may save for their retirement, set up and operated in accordance with the provisions of the Finance Act 2004 and the Pensions Act 2008. A SIPP member’s investments are held on trust and administered by the SIPP trustee and operator. The member is solely responsible for all decisions relating to the purchase, retention and sale of all investments within the SIPP. The value of the SIPP may only be applied to provide benefits in accordance with the scheme rules, which include (1) payments to the member on reaching retirement age and/or (2) payments to his or her nominees on death, pursuant to a tax-efficient discretionary trust structure.

The UT held that IML’s administration services did not involve any assumption of risk to the member and did not meet the necessary conditions for an “insurance transaction”, in accordance with the consistent case law of the CJEU, starting from Card Protection Plan Ltd v. CEC (Case C-349/96) and including United Biscuits (Pension Trustees) Ltd v RCC (Case C-235/19). IML’s services lacked the essential feature of an “insurance transaction”, namely that, under the contractual relationship between the insured and the insurer, the insured obtains some protection from a relevant risk or uncertainty; someone other than the insured must bear the cost of the payment or the provision of the service that is provided on the materialization of that risk or uncertainty. Under the trust arrangements of the SIPP, the provision of “life” and “death” benefits fell exclusively on the SIPP member, through the member’s accumulated fund, in which IML had no beneficial interest. For that reason, the UT, disagreeing with the FTT, considered that the SIPP was not a contract of insurance as a matter of domestic law. The UT further held that the pre-CPP decision of a VAT & duties tribunal in Winterthur Life UK Ltd v. CEC [1997] Lexis Citation 1166 was wrongly decided.

The UT further considered (obiter) that the fees paid by the member to IML were not “premiums”; they were not paid “in advance” for a benefit that may or may not arise, but were payments made after the event or for ongoing administrative services. Members’ contributions to their funds were not consideration for anything, but were held by IML on trust. The life and death benefits provided to the members, their dependants or other beneficiaries were paid out of the members’ own funds in which IML had no beneficial interest, by IML qua trustee under the powers and duties conferred by the trust deed and scheme rules; it was wrong to equate those powers e duties as a contractual obligation to provide benefits.

Andrew Macnab acted for HMRC.

Read the Upper Tribunal’s decision here.

Read the FTT’s decision here.