UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
Railway Limited & Others [2021] CAT 38). Expedited trials may also be ordered in certain circumstances.
inclusion of prohibited defeat devices in certain diesel vehicles. The competition queries include determining whether the defendants participated in any breaches of A.101 (a) TFEU or Chapter 1 of the CA 1998. CAT Collective actions have been available in the CAT since October 2015 for follow-on and standalone antitrust damages claims, following changes imple - mented by the Consumer Rights Act 2015 (CRA 2015). Claims may be brought on an opt-in or opt-out basis. The collective proceedings must be commenced by a person who proposes to be the representative in the proceedings. The CAT may authorise a claim where it is brought by a representative proposing to bring the claim on behalf of the class. The representative need not be a member of the class, if the CAT considers that it is just and reasonable for the representative to bring the claim in that capacity. Collective proceedings will only continue if the CAT makes a collective proceedings order (CPO). The CAT will make a CPO if it is satisfied that the claims are eligible for inclusion in collective proceedings. To be eligible, the claims must raise the same, similar or related issues of fact or law. The CAT will also consid - er, among other factors, whether collective proceed - ings are an appropriate means for fair and efficient resolution of the collective issues, whether separate claims of the same or similar nature have already been commenced by members of the class, the class size and nature, whether it is possible to determine for any given person if they are a member of the class, and whether claims are suitable for an aggregate award of damages. 4.2 Opting In or Out Collective actions have been available in the CAT since October 2015 for follow-on and standalone antitrust damages claims, following changes implemented by the Consumer Rights Act 2015 (CRA 2015). Claims may be brought on an opt-in or opt-out basis. In making a CPO, the CAT must also decide wheth - er the proceedings should be opt-in or opt-out. In O’Higgins v Barclays and ors and Evans v Barclays and ors [2023] EWCA Civ 876, the Court of Appeal stated that a powerful indicator towards a claim being
4. Class and Collective Actions 4.1 Statutory Basis
Procedures for bringing claims on a group or collec - tive basis differ depending on whether such claims are brought in either the High Court or the CAT. High Court Collective claims have been brought in the High Court as so-called representative actions. CPR 19.6 (1) allows a representative action to be brought by a claimant representing themselves and other claim - ants, where the group have the “same interest” and have opted in to the action. Representative actions are typically difficult to bring in private antitrust liti - gation. In Emerald Supplies Limited v British Airways plc [2009] EWHC 741 (Ch), the High Court struck out a representative action on behalf of both direct and indirect purchasers on the basis that the criteria for inclusion in the class depended on the outcome of the claim itself, and the direct and indirect purchas - ers would not all benefit from the relief sought by the claimant, because of the need for direct purchasers to pass on the overcharge to indirect purchasers in order for the latter to benefit from the damages awarded. The Court of Appeal upheld this decision, rejecting the claim as a means of engineering a class-action mechanism where one did not exist. The Court held that the “same interest” required a degree of certainty to constitute a class of persons capable of being rep - resented by one person. Group litigation orders (GLOs) under CPR 19.11 are available where one or more claims raise “common or related issues”. In practice, GLOs are rarely used in competition claims. However, Allsopp v Bayerische Motoren Werke AG [2023] EWHC 2710 provides a recent example of a GLO being used in competition litigation proceedings. In this claim, an application for a GLO was made on behalf of 41,225 out of approxi - mately 125,000 claimants who had owned or leased BMW motor vehicles in the UK. The defendants manu - factured, sold or leased these vehicles. The claim - ants alleged that the defendants were liable for the
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