The gatekeeper role of the CAT in UK collective proceedings: Lessons from Mark McLaren v MOL & Others

As the number of collective proceedings continues to grow and more and more cases reach a certain stage of maturity, the emergence of certain trends can be observed. One of them is the emphasis the Competition Appeal Tribunal (“CAT”) puts on a sound methodology and a “clear blueprint to trial” already at the certification stage. A prime example of this trend, apart from the Tribunal’s decision in Gormsen v Meta,[1] have been the proceedings in Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others, where the CAT issued its most recent Ruling on 6 April 2023[2].

The case concerns follow-on claims for damages of Mark McLaren Class Representative Limited (the “Class Representative”) against MOL (Europe Africa) Ltd and other providers of deep sea carriage of new motor vehicles to and from the European Economic Area (“MOL and others”). The Class Representative brings collective proceedings on behalf of UK consumers who bought new vehicles which had been carried by MOL and others: The latter allegedly operated as a cartel and overcharged the car manufacturers for their services, the overcharges then being passed on down the line to the consumers. Regarding the operation as a cartel and the ensuing infringement of Art. 101 TFEU, the claims rely on the European Commission’s decision of 21 February 2018 in Case AT.40009 – Maritime Car Carriers.

Initially, the CAT had granted McLaren’s Application pursuant to s.47B of the Competition Act 1998 to commence opt-out collective proceedings against MOL and others on 18 February 2022[3] and issued a Collective Proceedings Order. MOL and others, however, appealed against this judgment and on 21 December 2022, the Court of Appeal decided that the claim should be remitted to the CAT “in order that it might reconsider case management[4].

The core of the appeal concerned the determination of the overcharge and, consequently, of loss. The problem was a methodological one, in that the parties relied on completely different, mutually inconsistent theories of pricing and extensive disclosure and evidence. The CAT identified this problems in its judgment, but held that they were for trial. In the judgment of the Court of Appeal, however, this failure of the CAT to properly exercise its case management powers was an error of law.

The Court of Appeal based this view on recent caselaw on the gatekeeper role of the CAT and on the so-called “Pro-Sys test”, originally developed by the Canadian Supreme Court[5]. This test requires expert methodology to be “sufficiently credible and plausible” already at the certification stage so that, “if a claim is certified then the methodology offered by the class representative will provide an initial blueprint for the parties and the CAT of the way ahead to trial.” Hence, the CAT should have addressed the various problems arising from the parties’ theories of pricing already at the CPO stage.

Following the remittal, the CAT made good for this lapse and in its Ruling of 6 April 2023 gave directions to trial: The parties will first simultaneously file their own positive case on the pricing issues, before then responding to the respective other party’s positive case. Trial can be expected in the first quarter of 2025.

The case management is further complicated by parallel claims for damages brought by car manufacturers against MOL and others[6]. These proceedings do overlap to a certain extent with the collective proceedings brought by McLaren: The car manufacturers will contend that they did not pass on overcharges down the line, which maximises their loss but inevitably collides with the case advanced by McLaren. The CAT has already indicated that it is considering an “Umbrella Proceedings Order” pursuant to its Practice Direction 2/2022 in order to deal with those “Ubiquitous Matters”.

Johannes Nickl[7]

[1] Gormsen v Meta Platforms, Inc. and Others [2023] CAT 10.

[2] Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others [2023] CAT 25.

[3] Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others [2022] CAT 10.

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

[5] Pro-Sys Consultants v. Microsoft [2013] SCC 57.

[6] Volkswagen AG and Others v MOL (Europe Africa) Ltd and Others, Case ID 1528/5/7/22 (T).

[7] Doctoral Candidate at Heidelberg University, Germany.

Foto Credit: Bernard Spragg

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