UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
filing of the claim (rather than extending to the date of final judgment or settlement) to exclude any future claimants. Since the 2020 Supreme Court judgment in Walter Merricks CBE v Mastercard Incorporated & Ors [2020] UKSC 51, the bar to certification has generally been considered to be relatively low, with the vast majority of cases being certified. There have now been a small number of instances where a collective proceedings order has not been made. For example: (i) in the applications for col - lective proceedings against six water and sewerage undertakers, which the Tribunal rejected as the claim relied on alleged infringements of a statutory regime to which the only remedy was by way of an enforce - ment order by the UK’s water regulator; and (ii) in the application brought by Mr Rowntree to bring collective proceedings on behalf of songwriter members of the Performing Rights Society Limited. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law Common-Law Jurisdiction Regime For claims brought following 31 December 2020, and in respect of all defendants domiciled in juris - dictions outside the EU, the common-law jurisdiction regime applies, in which the English courts’ jurisdic - tion depends on the defendant being located within England or Wales, unless (on an application) it can be shown that another state’s courts are a more appro - priate forum. Claimants can apply for permission to serve a defendant domiciled in another jurisdiction if they can show: • that the claim has a reasonable prospect of suc - cess; • that there is a basis for jurisdiction set out in the CPR; and • that England and Wales is the proper place to bring the claim. On 28 September 2020, the UK submitted a new accession instrument to the Hague Convention on Choice of Court Agreements. The UK is now bound by
the Hague Convention in its own right rather than by virtue of its former EU membership; under the conven - tion, EU member states must give effect to exclusive jurisdiction agreements in favour of the English courts. The Brussels Regulation For claims brought prior to the conclusion of the UK’s Brexit transition period, and where the defendant is domiciled in an EU member state, jurisdiction is governed by EU Regulation 1215/2012 (the Brussels Regulation). The Brussels Regulation contains vari - ous bases for determining the jurisdiction in which antitrust claims may be brought, including: • where the defendant is domiciled; • the place where an obligation under a contract was to be performed; • in tort, the place where the harmful event occurred (the place where the damage was sustained or where the event giving rise to it took place); • any jurisdiction agreement; • whether a party submits to a jurisdiction; and • the jurisdiction of any related actions. Disclosure generally takes place once particulars of the claim, defence, and any replies have been served. If standard disclosure is ordered, parties to the liti - gation must search for and disclose all documents in their control on which they rely, and documents that adversely affect their own case, adversely affect another party’s case, or support another party’s case. Specific disclosure is commonly ordered in antitrust claims, requiring the disclosure of specific documents or categories of documents. The CAT Rules are sup - plemented by the CAT Practice Direction relating to Disclosure and Inspection of Evidence 2017. An order for disclosure may also be made requiring non-parties to disclose documents if the disclosure is likely to sup - port the case and is necessary to dispose of the claim fairly or to save costs. 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Standard and Specific Disclosure
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