On 1 October 2015 the Consumer Rights Act 2015 (the “Act”) came into force, introducing a raft of changes to the existing regime governing competition claims brought in the UK.
The Act introduces an “opt-out” collective actions regime, designed to enable defined classes of claimants, such as consumers or small and medium-sized enterprises (“SMEs”), to seek damages from companies found to have infringed competition law. This is an important change to the pre-existing regime, under which consumers or SMEs were required individually to sign up to litigation, or bring individual claims and expose themselves to the costs risks associated with doing so, in circumstances where their individual damages made litigating uneconomical.
But also of importance are several other changes brought about by the new regime, which taken together are intended to facilitate access to effective redress by victims of competition law infringements.
“Opt-out” collective actions
The Act introduces, for the first time in the UK, an “opt-out” collective action regime, under which a “class representative” is able to bring “collective proceedings” in the UK’s specialized Competition Appeal Tribunal (“CAT”) on behalf of a “class” of victims of a competition law infringement who have not chosen to “opt out” of the litigation. This marks a significant departure from the various ways in which victims of competition law infringements were able to seek redress in the past – notably, from the previous “opt-in” proceedings that have existed for over a decade but been used only once in that time, which required all those seeking to claim to actively sign up to the litigation.
Key elements of the new collective actions regime include:
The way in which the collective actions regime is set up makes it likely that the “certification” stage will be a key battlefield for claimants and defendants in the early days of the Act, and some satellite litigation around these issues is inevitable. Nevertheless, in circumstances where the new regime is intended to facilitate access to redress by victims of competition infringements, it is to be hoped that the CAT (and the Court of Appeal) will deal swiftly with peripheral issues in order to ensure the effectiveness of the new provisions.
Other key changes brought in by the Act
The Act also contains important provisions extending the general powers of the CAT, in particular by introducing a number of changes that are intended to consolidate competition claims in the CAT as opposed to the High Court:
It remains to be seen whether the new regime will translate into real success for victims of competition law infringements. But on any view, private enforcement in the UK is entering a new era.
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 The Consumers Association v JJB Sports PLC – the “replica football shirts” litigation.