The two proposed class representatives were special purpose vehicles that had been established to pursue claims against the proposed defendants, who were the operators of payment card schemes. The proposed class representatives sought to combine by way of collective proceedings orders the stand-alone claims of merchants in the United Kingdom and/or European Union relating to the imposition of multilateral interchange fees, which were said to be anti-competitive. Two conditions had to be satisfied before the Competition Appeal Tribunal could make the collective proceedings orders. First, under section 47B(6) of the Competition Act 1998 the claims had to raise the same, similar or related issues of fact or law and be suitable to be brought in collective proceedings. Secondly, under section 47B(8) of the 1998 Act the proposed class representatives had to be authorised by the tribunal on the basis that, taking into account the factors in rule 78(2) and (3) of the Competition Appeal Tribunal Rules 2015, it was “just and reasonable” for them to act as representatives in the collective proceedings. The proposed defendants opposed the granting of the collective proceedings orders on a broad range of grounds, including eligibility and authorisation.
On the applications for collective proceedings orders—
Held, applications stayed. The proposed proceedings suffered from a number of defects relating to eligibility, which meant that they should not be permitted to proceed in their current form. The proposed class representatives would be given eight weeks to notify the tribunal and the proposed defendants of any intention to present revised proposals for any of the collective proceedings (paras 241, 251, 252, 253, 266–267).
Per curiam. (i) Where the proposed class representative is a pre-existing body, for example a consumer organisation, that is obviously a positive factor in favour of authorisation. However, a proposed class representative which is a newly formed entity will not as a matter of course be viewed negatively by the tribunal in assessing the authorisation condition. It is necessary in each case to consider the arrangements which are in place, particularly as regards the control and ability of the proposed class representative to exercise its functions fairly and adequately in the interests of class members. That is likely to involve an inquiry into the management of the body corporate proposed as the class representative (para 50–51).
(ii) It is a feature of the regime that proposed class representatives might be approached by lawyers or funders, rather than the other way around. There is no presumption that this creates an inability on the part of the proposed class representative fairly and adequately to represent the interests of class members. The key question is about control and the proper exercise of powers. That will need to be assessed by reference to the actual circumstances apparent to the tribunal (paras 52).
(iii) It is part of the tribunal’s function, as a gatekeeper, to satisfy itself that the class representative is likely to be able to bring a claim to fruition, so as to fully assert the rights of class members which will be extinguished by whatever results from the collective proceedings (para 145).
Michael Bowsher KC, Derek Spitz, Conor McCarthy and Alaina Newnes (instructed by Harcus Parker Ltd) for the proposed class representatives in the four applications.
Sonia Tolaney KC, Matthew Cook KC, Hugo Leith and Veena Srirangam (instructed by Freshfields Bruckhaus Deringer LLP and Jones Day) for the proposed defendants in two of the four applications.
Brian Kennelly KC, Daniel Piccinin KC and Isabel Buchanan (instructed by Linklaters LLP and Milbank LLP) for the proposed defendants in the other two applications.