UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
rules (CPR) do permit claims to be combined under a group litigation order, where those claims have “the same interest”; however, such claims are typically harder to bring, with a high threshold for determining commonality of interest between individual claims. Both the High Court and the CAT can grant declara - tory relief following the Digital Markets, Competition and Consumers Act 2024, which extended this power to the CAT. Transferral of Cases Between Courts The High Court may transfer as much of the proceed - ings to the CAT as relate to the infringement of com - petition law. This means that claims can be transferred in whole or in part. The High Court has held that the complexity of the issues involved, the extent to which economic evidence is at issue, as well as cost implica - tions, are all relevant to whether a transfer to the CAT will be ordered. Conversely, CAT Rule 71 allows the CAT to transfer a claim to the High Court. 2.3 Impact of Competition Authorities Under Section 58A of the CA 1998, decisions of the CMA or of the EC (made prior to 31 December 2020), once final (ie, once all appeals have been exhausted, or the deadlines for making appeals have passed), are binding in UK courts as they relate to the exist - ence of an infringement of competition law. In such claims, a claimant need not prove the infringement of competition law, and instead the proceedings will focus solely on the extent of the loss suffered by the claimant, and whether the claimant can establish that the defendant’s/defendants’ anti-competitive conduct caused the loss claimed. Infringement decisions by another EU member state’s national competition authority (NCA) on EU compe - tition law made after 9 March 2017 and prior to 31 December 2020 are treated as prima facie evidence of an infringement of EU competition law for the pur - poses of a claim for damages under paragraph 35 of Schedule 8A of the CA 1998. Under paragraphs 4.1 and 4.1A of the High Court Competition Law Practice Direction, competition authorities have the right to make written observa - tions and to apply to make oral observations on issues relating to the application of Chapter I or II of the CA
1998 and/or of Articles 101 or 102 of the TFEU. The CMA may make written observations or, with the permission of the tribunal, oral observations, in CAT cases (permission being given for the first time in a Section 47A CA 1998 claim in Epic Games, Inc and Others v Alphabet Inc, Google LLC and Others ). 2.4 Proof In both follow-on and standalone claims, the burden of proof is on the claimant. In follow-on claims the infringement decision will establish the existence of the infringement, but the claimant will have to prove that the infringement caused them to suffer loss. In a standalone claim, a claimant will have to establish the infringement and that this caused them to suffer loss. The standard of proof, as in civil claims generally, is the “balance of probabilities”. In addition, for claims where the loss or damage occurred wholly on or after 9 March 2017, there is a rebuttable presumption that cartels cause loss or damage (see Article 17 of the EU Damages Directive and Schedule 8A paragraph 13 CA 1998). Infringement decisions by another EU member state’s national competition authority (NCA) on EU compe - tition law made after 9 March 2017 and prior to 31 December 2020 are treated as prima facie evidence of an infringement of EU competition law for the pur - poses of a claim for damages under paragraph 35 of Schedule 8A of the CA 1998. Under paragraphs 4.1 and 4.1A of the High Court Competition Law Practice Direction, competition authorities have the right to make written observa - tions and to apply to make oral observations on issues relating to the application of Chapter I or II of the CA 1998 and/or of Articles 101 or 102 of the TFEU. If defendants can demonstrate that the alleged dam - age suffered by the claimant was passed on to the claimant’s own customers, then this may constitute a (whole or partial) defence to the claim. This is known as the “passing-on” defence. The burden of proving the pass-on defence lies with the defendant.
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