The CAT: defendants must not communicate directly with members of a class
In a unanimous judgment and rare public rebuke handed down on 28 November 2022  in the Ro-Ro collective claim by Mr. McLaren, the Competition Appeal Tribunal (CAT) confirmed that defendants must not communicate directly with actual or potential members of the class in respect of their claims.
This is the first case in which the Tribunal considered whether the Competition Appeal Tribunal Rules 2015 (the Rules) preclude defendants from communicating with class members where a class has been certified (and similarly between proposed defendants and proposed class members at the application stage, where a collective proceedings order is being sought).
Significantly, prior to this ruling, in February 2022, McLaren was the first Certification Proceeding Order (CPO) judgment in which the Tribunal had explicitly considered the position of larger corporates within an opt-out class. The defendant shipping companies had argued that larger businesses that either purchased or financed at least 20,000 in-scope vehicles should be hived off and dealt with on an opt-in basis. In this case, the Tribunal treated larger businesses no differently from smaller corporates and consumers in the class definition, and certified the class on an opt-out basis in contrast to the approach taken in other collective claims, such as FX and Trucks. The Tribunal ordered accordingly that class members would have until 12 August 2022 to decide whether to opt out of the McLaren collective proceedings.
However, shortly before the August deadline, the solicitors for defendant shipping companies NYK and WWO-EUKOR wrote a series of letters on behalf of all the Defendants (except “K” Line) to various large business purchasers concerning their participation in the proceedings. In addition to incorrectly summarising the proceedings, these letters presented the fact of being a member of an opt-out class as being akin to a claimant in normal litigation, and warned the addressees that if they did not opt out of the collective proceedings, the Defendants would be “likely” to make an application for disclosure against them, and recommended that they take independent legal advice.
Since the solicitors for the Class Representative were copied to these letters, the Class Representative was in a position to, and did, make an urgent application for the relevant Defendants to cease these communications.
The Class Representative’s primary contention was that, although the Rules contained no express prohibition of the above communications, such a prohibition was necessarily implied by the wording of the Rules – specifically, Rules 73, 75-79, 81, 87-88, 91 and 94.
The Defendants disputed this, and further argued that:
- any such implied restriction was an inhibition to the right of freedom of expression under Article 10 of the European Convention on Human Rights;
- in any event, it was impossible – or at least very difficult – to frame an appropriate (implied) restriction that differentiated between legitimate and illegitimate communications between a defendant and a class member; and
- subject to a general obligation to conduct themselves fairly (under Rules 4(2)(d) read together with Rule 4(7)), there was nothing to prevent a defendant from engaging in communications with class members.
The Tribunal considered neither of these objections to be sustainable. The Tribunal found that the restriction arises naturally out of the Rules, and that it in no way infringes a defendant’s human rights. Indeed, “[t]he whole point of the collective proceedings regime is that the represented persons are represented by a class representative” and communications should accordingly be “between the parties to those proceedings, and this does not include represented persons or putative represented persons.”
Further, in the Tribunal’s own view, although not strictly relevant to the above arguments, the overwhelming tenor of the letters was to mislead large business purchasers into believing that if they did not opt out, they would likely become involved in a time-consuming and expensive disclosure process – a process which the Tribunal had not in fact ordered or even considered at the CPO stage. The content of the letters, therefore, “cut across and undermined the potential benefits of collective proceedings, at least for these particular class members and potentially for all class members if and in so far as it influenced the potential make-up of the class.” The Tribunal concluded that “the terms of the Letters were such that they should plainly not have been written.”
The extent to which defendants to collective proceedings may communicate with class members or proposed class members is an important point that needed to be addressed absent an express prohibition in the Rules. With the defendant shipping companies’ aggressive approach towards large business purchasers backfiring so dramatically, we expect that defendants to collective proceedings will heed the Tribunal’s clear warning not to communicate with actual or potential class members on matters concerning their claims in the future.
 1339/7/7/20 Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others  CAT 53.
 1339/7/7/20 Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others  CAT 10.
 Copies of examples of these letters from Steptoe & Johnson UK LLP and Baker Botts (UK) LLP are appended to the Tribunal’s ruling as Annex A.
 Save for Defendant “K” Line.
  CAT 53, paragraph 20.
 Ibid, paragraphs 28(1) and 29(1).
 Ibid, paragraph 29(2).