UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
prior to December 2020 – Section 2 (1) of the Euro - pean Communities Act 1972 (as preserved by Sec - tion 1 of the EU (Withdrawal Agreement) Act 2020), which imported into English law Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Claims for damages before the CAT are based on Section 47A of the CA 1998 and/or Section 47B of the CA 1998. Section 47B of the CA 1998 forms the basis for collective actions before the CAT. Standalone and Follow-On Claims Claims may either be on a “standalone” or “follow- on” basis. In standalone claims, the claimant must establish: • the anti-competitive conduct of the defendant(s); and • that the defendant’s/defendants’ behaviour caused loss to the claimant. In follow-on actions, the claimant may rely on a deci - sion the CMA or the EC (if made prior to 31 Decem - ber 2020) finding an infringement of competition law. Provided the decision is final (all appeals or time limits exhausted), it binds UK courts, and the claimant need not prove the anti-competitive conduct as in a stan - dalone claim. Findings and decisions by EU member state competition authorities prior to 31 December 2020 are prima facie evidence of an infringement. 2.2 Courts Standalone and follow-on claims may be brought in the High Court or the CAT. Comparison Between the CAT and the High Court The CAT is a specialist tribunal with its own rules, pro - cedures and specialist judges. It hears cases in panels typically comprising a High Court judge (as chair) and two other members, who may be lawyers, judges, or specialists such as economists or accountants. High Court proceedings are typically presided over by a single judge who may or may not have specialist com - petition-law expertise. The powers of the High Court and CAT are broadly similar for typical competition proceedings: both can order interim measures such as injunctions and nei - ther has a limit on the compensation it can award.
However, only the CAT can hear collective actions under Section 47B of the CA 1998. In the High Court, the Civil Procedure Rules (CPR) permit claims to be combined under a group litigation order where they have “the same interest” –although such claims are harder to bring, given the high threshold for common - ality. Both courts can grant declaratory 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 proceedings relating to the infringement of competition law to the CAT, in whole or in part. Relevant factors include the com - plexity of the issues, the extent of economic evidence, and cost implications. 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, final decisions of the CMA or the EC (made before 31 December 2020) bind UK courts as to the existence of an infringement of competition law. In such claims, the claimant need not prove the infringement, and proceedings focus on the extent of loss and whether the defendant’s con - duct caused it. Infringement decisions by another EU member state’s National Competition Authority on EU competition law made after 9 March 2017 and before 31 Decem - ber 2020 are treated as prima facie evidence of an infringement for damages claims under paragraph 35, Schedule 8A of the CA 1998. Under paragraphs 4.1 and 4.1A of the High Court Competition Law Practice Direction, competition authorities may make written observations and apply to make oral observations on issues relating to Chap - ter I or II of the CA 1998 and/or Articles 101 or 102 of the TFEU. The CMA may make written or, with per - mission, oral observations in CAT cases (permission given for the first time in a Section 47A 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
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