Archive for February 6th, 2013
Reform of Private Enforcement of Competition Law in the UK: the Government’s Proposals
[Our friends Christopher Brown (Matrix Chambers and Eutopialaw) and Scott Campbell (Stewarts Law LLP) have kindly offered us a very interesting post on the reform of private enforcement of competition law in the UK. To the best of my knowledge, this is the first written piece commenting on the substance of the proposed reform. With those proposed changes, the UK may be trying to position itself as the leading forum for private actions in Europe. An absolute must read].
A while back, one of us blogged on the UK Government’s consultation, launched in April 2012, on possible reform of the private actions regime in the UK. The consultation was wide-ranging and included several radical proposals designed to facilitate redress for victims of anti-competitive conduct – most notably, the introduction of an ‘opt-out’ collective actions mechanism. Reaction to the consultation from lawyers and business was extensive: the Government received 129 formal responses, and opinion was sharply divided on some issues.
It has inevitably taken some time for the Government to take on board the responses and consider the way ahead, but, since the publication last week of its response to the consultation, we now know what it intends to do. In summary, the Government proposes to
- Strengthen the private law jurisdiction of the specialist judicial body, the Competition Appeal Tribunal (CAT);
- Introduce a “limited” opt-out collective actions regime, with “safeguards” designed to prevent frivolous or unmeritorious claims being brought;
- Promote alternative dispute resolution (ADR); and
- Take some limited action designed to ensure that private enforcement complements public enforcement.
In this post, we take a look at the main proposals, considering some of the likely practical implications of the reforms in the event that they are passed into law.
1. Putting the CAT front and centre of private enforcement in the UK
The first broad proposal is one on which most respondents agreed, at least in broad outline: to make the CAT the ‘go-to’ venue for private competition litigation in the UK. Since acquiring its private law ‘follow-on’ jurisdiction upon the entry into force of the Enterprise Act in 2003, the Tribunal has seen relatively little action, and much of the action it has seen has been in the form of procedural skirmishes relating to the ambit of that jurisdiction (several of which have gone on appeal to the higher courts). In many cases, claimants have preferred to commence follow-on proceedings in the High Court instead.
Chillin'Competition 