CAT gives judgment on the first ‘opt out’ competition damages collective proceedings

The proposed class representative (the ‘Applicant’) sought to recover damages for consumers who were overcharged for their mobility scooters. The claim followed on from a decision of the Office of Fair Trading in 2014, which found that Pride Mobility Products Limited (‘Pride’) and eight retailers had infringed the Chapter I prohibition in the Competition Act 1998 by virtue of Pride’s policy prohibiting the online advertising of certain mobility scooters below the recommended retail price. 

Pride argued that the new opt-out collective proceedings regime was contrary to its rights under Article 1 of Protocol 1 to the ECHR and/or EU law, on the basis that it would become liable by way of an opt-out collective action for its past conduct. The CAT unhesitatingly rejected this argument; the new provisions for opt-out collective proceedings do not give rise to any new or fresh liability, but merely act as a procedural innovation ‘to enable victims to obtain effective redress for losses they have suffered’.

Pride also raised various objections to the authorisation of the Applicant. The CAT did not find any of these arguments provided grounds to refuse Ms Gibson, General Secretary of the National Pensioners Convention, authorisation to act as the class representative.

Finally, Pride objected to the Applicant’s approach to quantification of damages. The OFT had found that Pride operated a market-wide policy of prohibiting the online advertising of certain mobility scooters below the recommended retail price, and it had identified specific infringements by eight retailers which resulted from their agreement with Pride to implement this policy. The Applicant therefore approached the quantification of damages by considering a counterfactual where Pride did not operate such a pricing policy. However, the CAT decided that, because the proceedings could only follow on from the OFT’s decision (any stand alone action being time-barred), the collective proceedings could recover only those damages that flowed from the specific infringements by Pride and each of the eight retailers. On this basis, the CAT concluded that the Applicant should be granted ‘an adjournment and the opportunity to amend the Claim Form to propose revised sub-classes and a methodology which focuses on the effects of the agreements that were the subject of the [OFT’s] Decision’. 

A copy of the judgment is here. 

Tom de la Mare QC, Tristan Jones and Daniel Cashman acted for the Applicant.