Post-Brexit London remains a premier location for competition litigation in Europe

On 30th September, Global Competition Review hosted its annual Competition Litigation conference in London, jointly chaired by Hausfeld’s Global Vice-Chair Anthony Maton and Partner Nicholas Heaton of Hogan Lovells. The event brought together government enforcers, economists, private practice lawyers, leading litigation funders and expert panelists, who shared their views on the development of the collective action regime, including the opportunities and practical challenges that these complex cases bring. The conference also examined the rise of claims against tech companies, such as Apple, Google and Qualcomm.

In an interview with co-chair, London Managing Partner Anthony Maton addressed some of the conclusions that were drawn as part of the conference’s closing remarks.

Is it still too early to predict the competition litigation fall out of Brexit?

“Following the Brexit vote in 2016, there was a lot of concern in the London competition world about what this meant for competition claims in London in particular. Move the clock forward to 2021, and the UK Government has landed one of the hardest and most confusing Brexits possible. Where does that leave competition litigation in London? Slightly counter-intuitively, in rude health I would say.”

Will it be plain sailing for “plain vanilla” competition litigation?

“There is a considerable amount of plain vanilla competition litigation going through the UK courts - some of it relates to very significant mass claims such as Interchange Fees and Trucks, with multiple claims being litigated, as well as standard claims such as in the Power Cables cartel and esoteric claims such as in Orange Juice. With a run-off period in relation to on-going investigations, I expect there will be more litigation to come.

Some say that once that period will have run its course, the future for 'plain vanilla' competition claims is uncertain. I, however, am of the belief that such claims will continue to run in London, partly because UK businesses will want to litigate here and partly because some of the litigation advantages of London remain, notwithstanding the Directive. Notably, the UK benefits from the Competition Appeal Tribunal (CAT), a specialist body whose members have considerable expertise in competition and other matters. Furthermore, the domestic landscape for private enforcement also allows for opt-out collective redress, with the regime now truly taking off with the Merricks claim certification and permission to progress to trial.[1] In addition, there is a lot of regulatory activity worldwide in the tech and digital space which raises fascinating and complex issues of antitrust law across the globe. Such issues are and will be litigated in the UK courts – both individually and collectively.”

That brings us neatly to the collectives…

“Last, but by no means least, the collective regime in the UK has emerged like a butterfly from its chrysalis with 11 mass claims currently pending before the courts, and more in the wings. As mentioned, post-Merricks, the regime is set to become the most important center for resolving mass competition claims outside the US. In Europe, only the Dutch regime, which still has some distance to go, rivals London the closest. The pace of change elsewhere in Europe is snail-like. This has resulted in innovative claims in London in relation to e.g. Apple, Google & Qualcomm which define European-wide competition issues being litigated in London, supported by a funding industry that remains committed to financially backing litigation.

In conclusion, for all the reasons set out above, London remains in remarkably robust shape to maintain its position as the premier location for competition litigation in Europe.”

Footnotes

[1] Since the GCR Annual Competition Litigation Conference 2021 took place in September 2021, the CAT further certified Justin Le Patourel v BT Group Plc and British Telecommunications Plc [2021] CAT 30 and Justin Gutmann v First MTR South Western Trains Limited and Justin Gutmann v London & South Eastern Railway Limited.

*Anthony Maton is Co-Chair and Managing Partner of the London office.