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).

Colley v Motor Insurance Bureau, Court of Appeal, Judgment 22 March 2022, [2022] EWCA Civ 360

The Court of Appeal has dismissed the appeal in Colley v Shuker & ors (the first instance decision is discussed here). Philip Moser QC acted for the successful claimant/respondent.

The claim is by Mr Daniel Colley, the passenger victim of a road traffic accident who suffered catastrophic injuries in a car crash in 2015. He claims Francovich damages by his directly effective rights under the Codified Motor Insurance Directive 2009/103/EC (“the Directive”).

The claim is against the Motor Insurers’ Bureau (“the MIB”), which was held to be the appropriate UK body for claims under the Directive in MIB v Lewis (see news item here). The MIB nonetheless denied liability, claiming that it was not the appropriate body for the particular obligation in this case.

The question on appeal was: Is the obligation of the MIB under Articles 3, 10 and 12 of the Directive an obligation limited to providing compensation where there is an unidentified vehicle or a vehicle in respect of which there is no policy of insurance in being at the time of the incident giving rise to liability? Or does the obligation also extend to a case where there is a policy of insurance in being at the time of the incident giving rise to liability, but that policy is subsequently avoided ab initio?

The Court of Appeal (Stuart-Smith LJ giving the judgment of the Court) held that the MIB’s obligation to pay the victim does extend to such a case.

It was not in dispute in the appeal that UK implementation of the Directive was in breach of EU law. As a consequence of this breach Mr Colley did not receive the compensation from the Insurer that, as a matter of European law, he should receive.

The MIB’s (directly enforceable) obligation under Article 10 to provide compensation for personal injuries caused by “a vehicle for which the [Article 3] insurance obligation … has not been satisfied” is coextensive with the Article 3 obligation on the State and the MIB must therefore make good the shortfall between what should have been provided and what was provided as a result of the non-compliance (which was nothing).

In so finding the Court of Appeal followed and applied the CJEU cases Case C-409/11 Csonka and Case C-287/16 Fidelidade and reaffirmed its own case law in Delaney (see news item here) and Lewis (see news item here).

Philip Moser QC was instructed by Irwin Mitchell LLP. A link to the judgment is here.

The Competition Appeal Tribunal has granted Dr Lovdahl Gormsen permission to serve a collective proceedings claim form on Meta and Facebook Ireland out of the jurisdiction.

Dr Lovdahl Gormsen is the Proposed Class Representative in a claim for abuses of dominance, brought on behalf of some 45 million Facebook users.

The President of the Competition Tribunal held that it is “seriously arguable that the matters relied on and alleged constitute abusive conduct” and that “there is a serious issue to be tried on the merits of the case against Meta, and Facebook Ireland”. He also considered “that the UK (and this Tribunal) is clearly and distinctly the appropriate forum for the trial of this action”.

The President’s Reasoned Order is available here.

Ronit Kreisberger QC and Nikolaus Grubeck act for Dr Lovdahl Gormsen, instructed by Quinn Emanuel.

John Swift QC’s independent lessons learned review of the FCA’s supervisory intervention on interest rate hedging products was published in December 2021.

On 16 March 2022, John Swift QC appeared before the Treasury Committee with Nikolaus Grubeck and David Capps of Ashurst LLP to answer questions about the review. Kristina Lukacova also worked on the Review and attended the hearing as part of the Review team.

A video link is available here.

The Report is available here.