Given that most high-profile competition law actions tend to involve the decisions of large-scale regulators following heavily-protracted investigations (such as the recent seven-year EU commission investigation into Google’s online shopping offering), small businesses and consumers could be forgiven for thinking that redress in competition law is not a realistic proposition.
It was, however, with this perception in mind that the Competition Appeal Tribunal’s (CAT) “fast track” procedure (FTP) was introduced in May 2015. Specifically, the FTP sought to facilitate with greater speed, ease and certainty as to costs the bringing of private competition law actions (i.e. actions between a private claimant (such as an individual or company, not a regulator) and a private defendant).
The first FTP judgment was given in May 2017: notably, a successful challenge by a legal training provider to the Law Society’s dominant position in that market. In a show of judicial busyness, on 5 July 2017 the CAT delivered two further FTP judgments, lending weight to a view that the CAT is beginning to deliver on its mission of empowering individuals, micro-businesses and SMEs to challenge anti-competitive behaviour.
The claimant in the first case was UKRS Training, who offer training to those wishing to work on National Rail’s infrastructure. The defendant, NSAR, is the operator of a Rail Training Accreditation Scheme (RTAS), offering accreditation to those wishing to provide such training.
UKRS had its accreditation suspended by NSAR for a period of three months in 2016 following NSAR’s decision that UKRS had breached rules relevant to the RTAS. Following an unsuccessful appeal against the suspension, UKRS brought an action under the FTP, alleging that its suspension by NSAR amounted to a breach of NSAR’s dominant position.
The judgment at issue was on a preliminary issue, namely, whether NSAR constituted an “undertaking” (and was therefore subject to competition law provisions). The CAT concluded that, for the purpose of the claim in these proceedings, NSAR did constitute an undertaking. This therefore gives UKRS scope to take further action against NSAR for breaching competition law.
The second case stemmed from a dispute between Agents Mutual Limited and estate agents Gascoigne Halman. Agents Mutual Limited are a mutual limited company owned by its estate agent members, who together operate online property portal “OntheMarket”. Gascoigne Halman took issue with certain rules of the portal, including the following:
Legal proceedings were originally brought by Agents Mutual against Gascoigne Halman in a contractual claim in the High Court; however, when competition law issues were raised, these subsequently transferred to the CAT. In this instance, the CAT found in favour of Agents Mutual. In particular, it said that the requirement to join only one other portal was not anti-competitive, but objectively necessary to the various rules which bind members of the Agents Mutual (which were pro-competitive). Further, it disagreed that the rule formed part of a wider concerted practice to boycott Zoopla.
Owing to a view that competition law issues are highly complex and cannot be properly addressed on a “quick and dirty” basis, the announcement of the FTP was met with some initial scepticism and a feeling that take-up by claimants would be slow. However, the period since its launch saw the announcement of a number of (presumably mutually satisfactory) FTP settlements involving metaphorical “Davids” challenging “Goliaths” (such as Tesco). The recent judgments have done more to consolidate the view that the CAT is able to offer small businesses meaningful redress in competition law issues. As such, while larger businesses might well feel worried, smaller businesses should feel emboldened, and would be well advised to consider if any competition challenges might be open to them in order to keep their trading partners and competitors “honest”.
Alex Haffner, Partner, Fladgate LLP (firstname.lastname@example.org)
Ben Milloy, Associate, Fladgate LLP (email@example.com)