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In a split decision, the Court of Appeal (CoA) has refused the appeal by Prof. Carolyn Roberts against the decision of the Competition Appeal Tribunal not to grant a collective proceedings order in her competition damages claims against six water and sewerage companies, on the basis that the claims were precluded by section 18(8) of the Water Industry Act 1991.
The majority, the Master of the Rolls and Lady Justice Falk, held that the claims were precluded by section 18(8), although for reasons different from those relied on by the Tribunal. Lord Justice Zacaroli gave a dissenting judgment in which he concluded that the claims were not so precluded, such that he would have allowed the appeal.
Like other water and sewerage companies, the six proposed defendants are subject to price control regulation by Ofwat. Under that regime, the revenues that each company is allowed to charge households for the provision of sewerage services are controlled, including by reference to how well each company has performed against certain performance commitments, some of which relate to the number of pollution incidents on their networks.
Prof. Roberts contended that the companies abused their dominant positions by providing misleading information to the Environment Agency and Ofwat (understating the number of pollution incidents on their networks), as a result of which they were permitted to charge consumers higher prices for sewerage services.
The claims will now not proceed, unless Prof. Roberts successfully seeks permission to appeal to the Supreme Court.
The judgment is available here, and the media summary here.
Before the CoA, Jon Turner KC and Julian Gregory represented Prof. Roberts (funded by Benchwalk), instructed by RPC. Daisy Mackersie represented the proposed defendants, instructed by Freshfields.
Several other members of chambers have been instructed at earlier stages of the proceedings (see here).