The Competition Appeal Tribunal (CAT) has adjourned a decision on whether to authorise class representatives in the trucks cartel litigation pending a possible Supreme Court hearing in the Mastercard case.
In April, the Court of Appeal held that the CAT’s judgment denying the representative claimant in the Mastercard case a collective proceedings order (CPO), contained errors of law and that the tribunal mis-directed itself in applying the new regime.
The Court of Appeal refused permission to appeal to the Supreme Court, but Mastercard has announced its intention to seek permission from the court.
The trucks claim follows a decision by the European Commission to fine MAN, Volvo Group, Daimler, Iveco and DAF nearly €3bn (£2.6bn) for price fixing and other cartel activities between 1997 and 2011.
Two organisations – special purpose vehicle UK Truck Claims Ltd (UKTC) and the Road Haulage Association (RHA) – have applied for CPOs to act as class representatives, and a hearing was due last month. UKTC’s is an opt-out action, whereas the RHA’s is opt-in.
Damages could be many thousands of pounds per truck, and hundreds of thousands of trucks are potentially affected.
However, the CAT decided to adjourn the hearing – against UKTC and the RHA’s wishes – after deciding it would be best to wait to see what happened in the Mastercard case.
The CAT – led by president Mr Justice Roth – said: “If we were to grant either, or both, CPOs applying the Court of Appeal test and if the Court of Appeal judgment was then reversed by the Supreme Court, it seems to us that we would have to hear argument on these applications again, no doubt formally on an application to revoke the CPOs.”
It estimated that the total costs, for all parties, of a five-day hearing were likely to be well over £5m.
The CAT said it was not persuaded by the applicants’ submissions that an adjournment would cause a lack of confidence or confusion amongst class members.
“In each case, the class comprises of commercial enterprises and we think that it should not be difficult to explain that the hearing of their case awaits the outcome of a potentially fundamental appeal before the UK’s highest court,” it said.
“To the contrary, if the risk were to materialise that the applications had to be heard again, with potentially a further process of opting-in or opting-out, we think that would be much more likely to cause concern and confusion, among class members.”
Another consideration was the CAT’s resources and the impact on litigants in other cases.
“We fully understand and appreciate the desire of the applicants to progress their cases on behalf of the many thousands of small businesses who are part of their respective classes. However, at the end of the day these are damages claims, including, of course claims for interest on those damages…
“The RHA claim was some two years in preparation and the UKTC claim clearly also had a significant period of gestation before the proceedings were formally launched, given the depth and volume of material attached. Accordingly, there is no particular urgency in either application.”
The CAT also said the respondents had given undertakings not to argue at a later date that there was a limitation bar for UK class members “by reason of any effluxion of time caused by the adjournment”.
The applicants raised further limitation issues concerning both High Court proceedings and foreign claimants, but the CAT said concerns about potential individual claims were “somewhat artificial”.
It explained: “Both the UKTC and the RHA claim forms assert, as part of the justification for bringing collective proceedings, that the sums at stake for many individual claimants would be insufficient for it to be cost effective for them to bring such individual proceedings.
“We have to stand back and take a view of what is sensible and proportionate and in the interests of justice to all parties, and also to other litigants before the CAT.
“We do not find that any potential prejudice by reason of limitation is anywhere near sufficient to outweigh the substantial considerations that we have outlined above. In our view, there are manifestly strong reasons for an adjournment in the present circumstances.”
However, the CAT is this week holding a hearing on the preliminary issue of whether the authorisation of UKTC and/or RHA as class representative should be refused on the grounds of their respective funding arrangements.
UKTC has funding from Calunius Capital, and the RHA from Therium Capital Management, and both also have after-the-event insurance.
UKTC has instructed Weightmans and counsel Rhodri Thompson QC, Adam Aldred and Douglas Cochran. The RHA is represented by Backhouse Jones and Addleshaw Goddard, instructing James Flynn QC, David Went and Emma Mockford.