Justin Gutmann successfully defends appeals against certification for opt-out collective proceedings on behalf of train travellers

On 28 July 2022, the Court of Appeal dismissed all appeals against the certification of our client, Mr Justin Gutmann, as class representative in his landmark standalone claim for abuses of dominance by the South Western and Southeastern rail franchises.

In good news for rail passengers and the collectives regime as a whole, the Court of Appeal found unanimously that liability can be dealt with on an aggregate basis.

Hausfeld is representing Mr Gutmann, an experienced campaigner on both consumer issues and the transport sector, along with its co-counsel Charles Lyndon.

The claims

The claims relate to boundary fares, which allow passengers who own a Travelcard to travel beyond the zones covered by their Travelcard without doubling up on payment.

Mr Gutmann alleges that First MTR South Western Trains, Stagecoach South Western Trains (together, “South Western”) and London & Southeastern Railway (“Southeastern”) did not make boundary fares sufficiently available for Travelcard holders to purchase or make passengers aware of their existence.

These failures have left customers with little option but to buy a higher fare than required because their Travelcard already entitled them to travel for part of their journey. Mr Gutmann alleges that this is an abuse of the rail companies’ dominant market position and in breach of competition laws. The claims aim to put a stop to double charging, and are estimated to be worth around £93 million in damages on behalf of millions of passengers who have travelled in and around London

The Court of Appeal

South Western and Southeastern each alleged before the Court of Appeal that the CAT had erred in law in various respects in granting Mr Gutmann’s applications for a collective proceedings order (CPO). Following a three day hearing in the Court of Appeal in June 2022, the Court of Appeal delivered its judgment, dismissing the appeals and confirming Mr Gutmann’s right to pursue the claims.

Anthony Maton, Global Co-Chair at Hausfeld said:

“This is great news for our client Justin Gutmann in his long-running case to seek redress for rail passengers who have been double charged.  It is also great news for collective redress in the UK, as we now have a ruling that liability can be determined on an aggregate basis.  This is a vital part of making sure the competition collective proceedings regime works as it should, and ensures access to justice and an effective deterrent to wrongdoers.

What next?

Now that the appeals have been dismissed, the cases can proceed again to full trial and, if successful, the millions of rail users who are believed to have been double-charged will be compensated for their loss. Affected passengers who live in the UK will be automatically included in the claims although they can choose to opt-out in due course. Affected passengers who do not live in the UK will also be eligible to join the claims but must proactively opt-in.

The judgment

Further information 

This collective action is funded by Woodsford, a founding member of the Association of Litigation Funders of England and Wales and is further supported by Monckton Chambers and Alix Partners. 

Please access the dedicated website.

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