CDR’s Winter Competition Litigation Symposium combined high-profile speakers, informed debate and a progressive outlook on the key areas of contentious competition law, making it a critical, as well as networking, success.
The event opened with a keynote address by Kassie Smith QC, a barrister at Monckton Chambers. Smith gave a clear, concise and comprehensive overview of the state of competition litigation in the United Kingdom, as it stood at present.
Some indication of the complexity of the issues involved could be seen in recent proposals by the chair of the Competition and Markets Authority (CMA), Lord Tyrie, who recently announced proposals for the reform of competition law, which Smith outlined to her audience.
Noting that any discussion of reform could not take place without mentioning Brexit, she reminded her audience there were just 16 parliamentary working days to Brexit day – and there was still no certainty as to what form it would take.
Calling the delays “inexcusable”, she said they had created both risks and opportunities. Assuming that the withdrawal agreement was implemented, in the event of a deal, there would be “business as usual” in the transition period, and in the absence of future agreement, the much-discussed Northern Irish ‘backstop’ must apply – with the legal implications it carries.
Should there be no-deal, the government’s revised competition law regime, importing European Union law into UK law, in areas such as state aid, would apply. Smith argued that it was reasonable to assume that UK and EU competition law would diverge over time, given differing views over the importance of the single market – with the UK courts and regulators leaning in different directions.
On the subject of follow-on actions, she noted that it was long established that actions can be brought in English courts based on torts committed under foreign law, enabling cases brought under those laws to still be brought in England and Wales. It was unlikely that the UK courts would ignore European Commission investigations and decisions, or the evidence generated, although their view of EU precedent and the rulings of the EU courts might alter.
While after Brexit, European Commission decisions were no longer binding in UK, Smith reminded her audience that claims can still be brought under Article 101 breach if the conduct concerns precede 29 March 2019.
Concluding with a look at the Rome II and the Brussels Recast Regulations, Smith was cautiously upbeat in her conclusion as to opportunities post-Brexit, being hopeful that the English courts and competition lawyers will be creative and open-minded in how they approached the discipline.
MASTERCARD AND AFTER
The first session of the day then commenced with an overview of the various strands of the MasterCard litigation.. In the chair was Nigel Seay of Travers Smith, who gave a concise summary of the proceedings at hand – perhaps illustrating the complexity that faces the opposing parties and counsel, not to say the appellate judges.
Boris Bronfentrinker of Quinn Emanuel Urquhart & Sullivan gave his own exposition on the state of affairs, which was both balanced, in the absence of a defendant perspective, but also honest, in illustrating some of the key arguments (before the tribunal and the appeal courts) including the most recent appellate hearing in which he appeared for the claimant Walter Merricks CBE.
Regardless of one’s views – and in deference to those on the corporate side, these are no less firmly held than those of Merricks – it is clear that the Court of Appeal has examined all the issues relating to the current statutory regime and the case law behind the claims. Whatever the judges decide, they know the importance of these cases and the precedential value of any ruling they might give.
That same sense of judicial rigour was imparted by Fergus Randolph QC of Brick Court Chambers, who summarised the state of play in the so-called interchange range of cases, also disposed of by the Court of Appeal.
It is clear that the Court of Appeal was determined to give clarity to the law, following the morass of competing judgments in the first instance cases heard so far and to move the cases on the quantum phase before a suitably senior combination of the Competition Appeal Tribunal (CAT).
FUTURE OF UK COLLECTIVE REDRESS
Chaired by Collette Rawnsley of Wiggin, the panel – comprised of Baker McKenzie’s Francesca Richmond, Woodsford Litigation Funding’s Charlie Morris and Charles Balmain of White & Case – traversed the complexities of collective redress in the UK in a lively and mature manner.
Such actions, noted Richmond, had been relatively slow to get off the ground, essentially because the associated procedural rules had stymied efforts to pursue collective actions. There had been a gradual shift in applications – the CAT had now received five such applications, which was a positive step, and a similar step-change in approach, from Group Litigation Orders to an opt-out model.
Those tentative steps, albeit increasingly firm in confidence, had led to market uncertainty, noted Morris, which had similarly increased the reluctance of litigation funders to get involved. They understood the advantages and disadvantages of such claims, but there was a consensus that the market had been slow to get off the ground, said Richmond, while Balmain noted: “opt-out action is attractive but not easy to mount”.
One downside is reputational, noted Morris – with shareholders voicing their concern about their visibility as a claimant in a collective action, as while they wanted to pursue their claims they didn’t want to be seen to be litigious in nature, being particularly conscious of damaging business relationships.
Nothing the lack of a single institutional mechanism to harmonise claims, although the prospect of extending the Collecting Proceedings Order (CPO) model was enticing, the panel drew on positive examples elsewhere, such as Australia’s successes in class action cases, while Balmain noted that even “under the current collective redress regime, there is good scope to broaden claims, including mass torts, securities actions under s90(a) of the Financial Services & Markets Act, and data breaches”, here in the UK.
Delegates were informed that it was unlikely that there would be any EU collective redress legislation until the European Parliament reconvenes after the May 2019 elections, the panel heard there may well be competition between jurisdictions as to where claims should be raised – Germany was one name bandied about – as well as the UK, although the combination of Brexit and the exit from the Brussels Recast Regulation made UK collective actions less competitive.
So much, then, for UK class actions, in what was a largely positive, but realistic debate. Discussion then turned to the next panel, an update on the progress of the EU Damages Directive.
DAMAGES DISRUPTED
Emanuela Canetta of the European Commission updated the audience on the progress of implementation of the Damages Directive, which was a proactive story, if not always a uniform one.
Canetta noted that damages claims are on the rise in Europe and the French courts are now hearing certain matters in English, while the UK experience, as far as the CAT goes, was looked upon positively as an implementation example, given the UK was one of the few jurisdictions with a collective redress scheme.
With all 27-member states having transposed the Directive into national law, itself a positive achievement, the Commission was now working on guidelines to help courts deal with pass-on claims, and the protection of confidential information, both in relation to adding to the landscape envisaged by the Directive, Canetta said.
The audience then heard detailed briefings from both Paul Hitchings of Cuatrecasas, representing Spain and Gennaro d’Andria of 3D Legal, representing Italywhile White & Case’s Aqeel Kadri chipped in with the UK perspective.
Hitchings gave a vibrant overview of a thriving Spanish cartel claims scene, with litigation on the rise and a commensurate need for guidance for the courts on the Directive.
D’Andria, meanwhile, outlined the relatively compact jurisdiction in which to bring claims – in courts in Rome, Naples and Milan, and a busy judiciary, which often encouraged early settlement in order to reduce the number of cases. For example, he noted, on follow-on cartel claims, the lack of published decisions seems to imply that practically all of them are settled at some point.
Whether ranging from leniency to disclosure, Stefaan Raes of Liedekerke Wolters Waelbroeck Kirkpatrick steered the panel on a range of issues relating to the actual exercise of the laws promulgated by the Directive, closing with questions.
EXPERT EVIDENCE
Fountain Court Chambers barrister and former Canadian antitrust regulator, David Wingfield, then took the reins to chair a panel on expert evidence in multinational class action proceedings. Needless to say, Mr Justice Marcus Smith’s ruling in the BritNed v ABB litigation was the source of active attention, and it received a suitably expert address, although it was not the only topic on offer.
Representing the expert community were Bruno Augustin, speaking from an accountant’s perspective, Peter Davis from Cornerstone Research and Liam Colley of AlixPartners, while John Cove of Shearman & Sterling provided a much-needed United States perspective.
The panellists provided a good deal of realism, both as to the obvious interplay between economic theory and factual evidence, as Colley noted and the need for both to be faithful to the facts of the case.
If Colley was sensible to address the limits of economic theory in defining an appropriate methodology, he was at pains also to stress that BritNed did not mean the death-knell of econometric evidence and explained why it is a solid appreciation of his art.
Davis, similarly, made the complex seem clear, pointing out that economic models allow ‘if-then’ statements – if the ‘if’ isn’t properly founded in the evidence, the ‘then’ will not be either. So, the starting point, for him was that the economic theory’s ‘ifs’ should fit with the available evidence, the latter being neither too literal, nor too specific and like Colley, he stressed the importance of economists engaging with the evidence and striking a balance between complexity and simplicity in such matters, especially if a suitable wealth of data was available.
Davis commented: “We may not know every industry perfectly, but it’s perfectly reasonable for us to be required to know the main facets of an industry of the damages [that] are being sought.”
Augustin helpfully provided his thoughts on striking a balance between estimation and precision, and between simplicity and complexity, in acting as an expert, with Cove giving a perspective on US matters, including the role played in class certification, the way in which such evidence is tested and perennial issues of party concern.
The idea that certain questions addressed in BritNed might have been left, not to the forensic mind of a judge, but to a US jury, raised eyebrows – for if aspects of the case seemed too complex and difficult for Smith, how would the public fare – but the panels’ explanation of this subject was both realistic and remarkably fluent. That closed the morning’s proceedings for delegates.
