The Consumer Rights Act 2015 and collective redress for competition law infringements in the UK: a class act?

* Professor Barry J Rodger, Law School, University of Strathclyde. Email: barry.j.rodger@strath.ac.uk.

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Journal of Antitrust Enforcement, Volume 3, Issue 2, October 2015, Pages 258–286, https://doi.org/10.1093/jaenfo/jnv027

11 August 2015

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Barry J. Rodger, The Consumer Rights Act 2015 and collective redress for competition law infringements in the UK: a class act?, Journal of Antitrust Enforcement, Volume 3, Issue 2, October 2015, Pages 258–286, https://doi.org/10.1093/jaenfo/jnv027

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Abstract

This article is the first in-depth academic discussion of the key aspects of the enhanced collective redress mechanisms introduced recently in relation to competition law infringements in the UK by the Consumer Rights Act. The legislation is a particularly significant development because of the historical and contemporary focus on the ‘consumer’ at the heart of competition/antitrust law and because the reforms also reflect more recent debates generally in legal practice about ‘access to justice’. The article first recounts the pivotal role played by ‘class actions’ in US antitrust enforcement before outlining the recent debate on encouraging and facilitating private enforcement in the EU, particularly in relation to collective redress, culminating in the (anodyne) Commission Recommendation of June 2013. As the article notes, most of the collective redress mechanisms introduced across the EU Member States to date have been opt-in models, but these have been criticized for their limited impact and effectiveness, and an opt-out representative model has been introduced in some Member States and discussed in others. The article will reflect on the limited provision in the UK on collective redress in relation to competition law infringements prior to the Consumer Rights Act, in particular the limitations in the opt-in follow-on procedure under section 47B of the Competition Act 1998, as demonstrated by CA v JJB. The article will then focus on the Act’s provisions (and associated Tribunal rules) in relation to opt-in/opt-out collective proceedings and settlements (in both follow-on and stand-alone actions). The article will outline the new statutory provisions in sections 47B and 49A and B of the Competition Act 1998, for Collective Proceedings and Collective Settlements, respectively. The Tribunal rules on certification will be considered, noting the potential difficulties in their practical application, before further analysis of two key problematic aspects of the proposed opt-out collective redress scheme, which may limit its effectiveness and uptake. The first concerns the appointment of the class/settlement representative and the second concerns the potential funding arrangements in relation to opt-out collective proceedings. The article questions whether the combination of these two aspects may dis-incentivize and unnecessarily limit the effectiveness of the new opt-out provisions, although it is accepted that this will also greatly depend on the Competition Appeal Tribunal interpretation and application of its new Tribunal Rules in relation to Collective proceedings, in particular regarding certification, appointment of the class/settlement representative, and determination of the appropriate costs and expenses incurred in pursuing a collective claim.