Sainsbury's Supermarkets Ltd v Mastercard Incorporated & Ors

Factual and Procedural Background

The court considered whether the present proceedings should be transferred from the High Court to the Competition Appeal Tribunal ("CAT") following the enactment of the Consumer Rights Act 2015, which expanded the CAT's jurisdiction. The judge initiated this question during case management conferences and invited the parties' views. Both parties responded, with the defendants agreeing to the transfer and the claimant not opposing it in principle but raising points concerning limitation and costs. The proceedings are complex and lengthy, involving extensive expert economic evidence and multiple issues. The trial was scheduled to begin in January 2016, and the court confirmed that the transfer would not disrupt the existing timetable. The judge, who had been managing the case, was available to preside over the trial in the CAT, preserving continuity.

Legal Issues Presented

1. Whether the proceedings should be transferred from the High Court to the Competition Appeal Tribunal under section 16 of the Enterprise Act 2002 and the 2015 Regulations, given the expanded jurisdiction of the CAT following the Consumer Rights Act 2015.
2. The applicability of transitional limitation provisions under Rule 119 of the Competition Appeal Tribunal Rules 2015 to proceedings transferred from the High Court to the CAT.
3. Whether the additional costs arising from the requirement to prepare multiple trial bundles for the CAT should be shared between the parties.

Arguments of the Parties

Defendant's Arguments

• Agreed to the transfer of the proceedings to the CAT.

Claimant's Arguments

• Not opposed in principle to the transfer.
• Raised concerns regarding the application of Rule 119 of the CAT Rules relating to limitation periods, seeking clarification on whether the CAT would have jurisdiction over claims arising more than two years before the claim commencement.
• Highlighted additional costs from copying and checking multiple trial bundles for the CAT and requested consideration of cost-sharing between parties.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the legislative background, noting that prior to the Consumer Rights Act 2015, the CAT's jurisdiction was limited to "follow-on" claims based on pre-existing infringement decisions, while stand-alone claims remained within the High Court's exclusive jurisdiction. Section 16 of the Enterprise Act 2002 provided powers for transfer to the CAT, but these were limited under the old regime.

The 2015 Act expanded the CAT's jurisdiction to include stand-alone claims and introduced new regulations enabling transfer of proceedings involving infringement issues. The court noted the specialist nature of the CAT, which benefits from a multi-disciplinary panel including legal and economic experts, and superior logistical and legal support, making it well-suited to complex competition cases such as the present.

The court considered the parties' views and the advanced stage of proceedings, confirming that the transfer would not disrupt the trial timetable. The judge's availability to act as Chairman of the CAT panel would ensure continuity and familiarity with the case.

Regarding the limitation issue raised by the claimant, the court analyzed Rule 119 of the CAT Rules and Rule 31 of the 2003 Rules, concluding that these rules apply only to claims originally commenced in the CAT and do not affect proceedings transferred from the High Court. Therefore, no altered limitation period would apply by virtue of the transfer.

On the cost issue, while acknowledging the additional burden of preparing multiple trial bundles for the CAT, the court found that in the context of very large and complex litigation, these costs are not a decisive factor against transfer and should not be treated differently in terms of initial burden.

In conclusion, the court found the transfer appropriate to achieve the overriding objective of dealing with the case justly and at proportionate cost, while preserving the claimant's claim in full and ensuring no loss of rights or elements due to the transfer.

Holding and Implications

The court ORDERED that the parts of the proceedings relating to claims under section 47A of the Competition Act 1998 and infringement issues be transferred to the Competition Appeal Tribunal pursuant to section 16 of the Enterprise Act 2002 and the 2015 Regulations, effective from 1 December 2015.

The order explicitly preserves the claimant's entire claim as constituted in the High Court, ensuring no alteration, limitation, or exclusion of any element due to the transfer. Any elements not within the CAT's jurisdiction remain before the High Court, which may give further directions as necessary.

The decision facilitates the hearing of complex competition litigation in a specialist tribunal with appropriate expertise and resources, while maintaining procedural continuity and respecting the parties' interests. No new precedent was established beyond applying existing statutory provisions and procedural rules to the circumstances of this case.