Second certification judgment in opt-out proceedings as UK class actions regime gathers pace
Following the first certification judgment in opt-out collective proceedings granted by the Competition Appeal Tribunal in Merricks last month, the CAT on Tuesday, 28 September, granted the first collective proceedings order in a standalone opt-out claim in Le Patourel v BT Group Plc and British Telecommunications Plc  CAT 30.
BT had attempted to strike-out and / or sought summary judgment to dismiss Mr Le Patourel’s claim, which relates to the alleged charging by BT of excessive prices to approximately 2.3 million of its landline customers in the UK. However, the CAT dismissed BT’s application and allowed Mr Le Patourel’s claim to proceed to trial.
Mr Le Patourel’s claim arose following a review conducted by Ofcom in February 2017 into the market for “standalone landline telephone services”. In its concluding review published in October 2017, Ofcom found that BT was the dominant provider in this market and that there was insufficient competition, causing detriment to consumers. Shortly thereafter, BT voluntarily offered commitments to Ofcom to, amongst other things, provide for a forward-looking price reduction for certain affected customers. Ofcom accepted BT’s commitments and did not make any infringement finding against BT.
Mr Le Patourel’s claim was thus bought on a standalone basis (that is, not founded on a regulatory decision), but with the claim period ceasing for certain of the proposed class members on the date that BT’s commitments came into effect (1 April 2018). Following Mr Le Patourel’s application for a CPO, BT brought a cross-application seeking summary judgment/strike-out of the claim, on the basis that there were no reasonable grounds for the application and that the claim itself had no real prospect of success. Subject to that application, BT did not resist the granting of the CPO on an ‘opt-in’ basis (where class members would have to actively sign up to the claim) but did resist the granting of the same on an ‘opt-out’ basis (where class members would not have to sign up other than for the purposes of the distribution of damages).
In its judgment, the CAT allowed Mr Le Patourel’s claim to proceed to trial on an opt-out basis.
The CAT first dismissed BT’s cross-application, finding that the claim had a real prospect of success. BT had raised six substantive points in support of its cross-application:
- First, that Ofcom’s review was made pursuant to the ex-ante regulatory regime under the Communications Act 2003, rather than under its ex-post As such, a finding of abuse in its review could not be simply ‘read across’ to a finding of abuse under Section 18 of the Competition Act 1998. The CAT considered that, although “it is correct that there is a contextual difference between the role of Ofcom, qua price regulator, and an analysis of abusive pricing”, it “hardly renders the Review invalid without more, for present purposes. It is plainly focussed on the excessive pricing of BT as a direct result of its market power…[Mr Le Patourel’s] case is not that there is some automatic ‘read-across’ of the Review so as to found the claim. Rather, the PCR relies upon the Review as a piece of evidence.” Consequently, the CAT was not swayed by this objection.
- Second, BT alleged that Ofcom’s review did not reach any final determinations about BT’s pricing. Likewise, the CAT determined this in short order, finding that: “a debate about the weight to be attached to the findings which Ofcom did make hardly amounts to a fatal undermining of the PCR’s case unless it can be said that no real weight could be attached to the Review at all; but that, in our view, is a hopeless submission.”
- Third, BT argued that Mr Le Patourel’s economic evidence failed to consider the wider competitive dynamics that influenced BT’s pricing. The CAT considered various sub-arguments on this point, but ultimately, concluded that “to the extent that there is something in some or all of those points, they do not at this stage render his evidence on abuse effectively worthless.”
- In addition, as a fourth point, BT argued that the economic evidence put forward by Mr Le Patourel to support a finding that BT had abused its dominant position in certain markets by charging excessive prices was wholly inadequate. BT argued that Mr Le Patourel’s economic expert had not attempted to show how BT’s pricing under the two limbs in Case C-27/76 United Brands v Commission EU:C:1978:22  was both excessive and unfair, in order to uphold such an allegation. The CAT held that he had, in fact, done so, and so BT’s criticisms were unfounded. They further commented that: “Whether, at trial, the benchmark chosen by the PCR remains adequate in the light of submissions made and/or evidence adduced by BT is another question. But it does not render the PCR’s present analysis merely fanciful.”
- Fifth, BT also argued that Ofcom’s review did not support a case of abuse regarding the sub-market for ‘split purchase customers’ (it also being argued that there was a second sub-market for ‘voice only’ customers). The CAT considered, again, that this objection was unfounded, as Ofcom’s review “makes plain that Ofcom did regard the pricing [in the split purchase customers market] as uncompetitive."
- Lastly, BT posited that a customer’s ability to mitigate any loss they suffered was a complete answer to the claim, in the sense that no damages could therefore be awarded at all. The CAT considered the arguments given by both sides as to the make-up and characteristics of the proposed class, including emphasis by Mr Le Patourel as to the demographic and vulnerability of some of the customers concerned. Ultimately, however, the CAT concluded that “the mere fact that BT might have an arguable case on failure to mitigate, as Ms Ford QC [for BT] submitted, goes nowhere in the context of the cross-application.”
Consequently, the CAT found that the evidence being relied on by Mr Le Patourel was clear in its support for at least a prima facie case of abuse as against BT. None of the six points raised by BT in relation to this evidence was sufficient to grant a strike-out application, and several of the issues BT had raised would need to be examined at a full trial, after all the evidence had been adduced and considered.
The CAT then turned to BT’s position that an opt-in claim would be more appropriate because the class members would all be easily identifiable as customers of BT. However, the CAT agreed with Mr Le Patourel that there was little prospect that class members would be sufficiently proactive to opt in. In addition, the claim was technical in nature and so consumers would be unlikely to be able to conduct their own assessment of the case when determining whether to opt in; and if too few consumers did opt in, then the claim would be liable to fail due to a lack of funding.
BT also raised arguments as to how, if the claim was allowed to proceed by way of an opt-out model, it would be possible to distinguish business from consumer customers, and those for whom a pass-on defence might be applicable, when this could be easily done in an opt-in model. However, the CAT concluded that, “on any view, we do not see that this feature of the claim delivers a fatal blow to the opt-out proposal overall at this stage…However, since we do not agree that the other matters relied upon in opposing an opt-out basis have any significant weight, the pass-on point cannot possibly make a difference.”
Lastly, we note that BT raised a consideration as to whether, if the claim was successful, the CAT would have jurisdiction to enable damages to be paid to each BT customer via an account credit or similar. The CAT noted that in such a case, under Rule 93 of the CAT Rules, any resulting damages are to be paid to the PCR or to “such other person other than the represented person as the Tribunal thinks fit”. The CAT left open the fact that this could include a claims administrator instructed by a PCR, or ultimately, a defendant (i.e., BT).
As the CAT had decided to dismiss BT’s cross-application and to grant a CPO on an opt-out basis, the parties were ordered to make any appropriate submissions as to the detailed provisions of the CPO and for directions to trial.
Mr Le Patourel’s success is positive news for consumers, prospective class representatives and for the opt-out collective proceedings regime more broadly. In particular, the CAT’s judgment demonstrates the difficulties that defendants may face in seeking to eliminate claims at this stage in proceedings and the speed at which this claim has moved - from filing in January to a CPO judgment in September - indicates how quickly the CAT intends to deal with these claims now that the period of Merricks-induced delay has come to an end.