2023 is going to be a great year for CAT people

In year three after the Supreme Court’s decision in Mastercard v Merricks, collective proceedings are in full swing. Due to the CAT’s ever-expanding case law, the legal landscape is rapidly changing before our eyes and there is no sign of the flurry of decisions slowing down: 2022 saw a rapid influx of cases and 2023 probably won’t differ in that regard: there are already several new applications to commence collective proceedings waiting in the wings. Apart from these new applications however, the first half of 2023 will bring several important decisions in pending cases:

The year started off promisingly with the UK Supreme Court hearing DAF’s appeal over the nature of funding agreements on 16 February 2023.[1] The case is essentially a piece of satellite litigation of the Trucks Cartel collective proceedings and concerns DAF’s argument that the litigation funding agreements entered into by the claimants are in fact damage-based agreements and therefore unenforceable, as they do not comply with the relevant statutory requirements. The judgment of the Supreme Court will be handed down over the course of summer and is anxiously awaited by England’s litigation funders, as allowing the appeal would profoundly compromise the industry’s business model. Given the prevalence of litigation funding in collective proceedings, the Supreme Court’s decision is also of great importance for collective redress in England.

A few days later, the CAT’s outright refused on 20 February 2023 to accede to Dr Liza Lovdahl Gormsen’s Application as Proposed Class Representative to commence opt-out collective proceedings against Meta.[2] The Tribunal took issue with the claimant’s methodology and decided that it, at least in the current state, failed the Pro-Sys test. In light of the importance of access to justice, however, instead of rejecting it, the CPO Application was stayed for a period of six months from 22 March 2023, enabling the Proposed Class Representative to “have another go”.

Methodology was also at the heart of a case management conference held on 23 February 2023 in the Maritime Car Carriers class action. Here the parties discussed producing their positive cases on their theories as to loss and damage until the end of 2023 following the Court of Appeal’s judgment of 21 December 2022[3] (regarding the appropriate level of case management by the CAT and the subsequent remittal to the Tribunal).

On 22 March 2023, Mr Justin Gutmann’s Application to commence collective proceedings against Govia Thameslink Railway Limited and Others was granted without any fuss, as the Tribunal felt that the important questions already had been answered in the previous proceedings commenced by Mr Gutmann.

From 3 to 5 April 2023, the CAT will hear Applications to commence collective proceedings in four related cases against Mastercard and Visa regarding Merchant Interchange Fees (“MIF”), with each proposed defendant facing both opt-in and opt-out proceedings.[4] This so-called “hybrid” approach will apparently be enriched in the near future by a fifth case concerning a different subset of business affected by Visa and Mastercard’s allegedly anti-competitive behaviour.

Starting on 25 April 2023, the Court of Appeal (sitting as a Divisional Court as well) will hear appeals and Applications for judicial review of the CAT’s judgment of 31 March 2022 regarding a ‘carriage dispute’ which had arisen in the Forex collective proceedings:[5] Both Michael O’Higgins FX Class Representative Limited and Mr Phillip Evans had applied to commence collective proceedings against Barclays Bank Plc and others, and both Proposed Class Representatives’ hopes were disappointed, as the CAT concluded that it should not certify either Application.

On 2 May 2023, another Application of Mr Justin Gutmann to commence collective proceedings will be heard by the CAT, this time against Apple. Mr Gutmann acts on behalf of UK iPhone users affected by the alleged substandard performance and reduced functionality of their iPhones.

Another ‘carriage dispute’ between the Road Haulage Association (RHA) and UK Trucks Claim Limited (UKTC) will be one of the issues the Court of Appeal has to deal with in a hearing starting on 9 May 2023. At issue are various appeals of the CAT’s Trucks Cartel judgment of 8 June 2022, in which the Tribunal granted the RHA application for a certification, but dismissed the UKTC application.[6]

On 7 June 2023, the CAT will hear the Application of Alex Neill Class Representative Limited to commence collective proceedings against Sony relating to the operation of Sony’s ecosystem for the PlayStation.

So, in short, the first half of 2023 will see a host of very interesting decisions regarding Section 47B of the Competition Act 1998. More CPO applications are likely to come and one thing’s for sure: At the end of 2023, the collective proceedings regime will yet again be a great deal more defined than at the start of the year.

Johannes Nickl[7]

[1] R (on the application of PACCAR Inc and others) (Appellants) v Competition Appeal Tribunal and others (Respondents), Case ID: 2021/0078.

[2] Dr Liza Lovdahl Gormsen v Meta Platforms, Inc. and Others [2023] CAT 10.

[3] Mark McLaren Class Rep. Ltd v MOL (Europe Africa) Ltd & Ors [2022] EWCA Civ 1701.

[4] Commercial and Interregional Card Claims I Limited (“CICC I”) v Mastercard Incorporated & Others; Commercial and Interregional Card Claims II Limited (“CICC II”) v Mastercard Incorporated & Others; Commercial and Interregional Card Claims I Limited (“CICC I”) v Visa Inc. & Others; Commercial and Interregional Card Claims II Limited (“CICC II”) v Visa Inc. & Others.

[5] Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others [2022] CAT 16.

[6] UK Trucks Claim Limited v Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others [2022] CAT 25.

[7] Doctoral Candidate at Heidelberg University, Germany.

Foto Credits: Jean Beaufort

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