Factual and Procedural Background
This opinion concerns a challenge to an order of the Competition Appeal Tribunal ("the Tribunal") dated 20 December 2022 ("the Order"), following a ruling on 18 November 2022 ("the Ruling") that defendants in collective proceedings before the Tribunal may not communicate directly with members of the class without permission from the Tribunal.
The collective proceedings were brought by the Respondent ("MMCR") as class representative against several defendants, shipping companies ("the Shipping Companies"). The Order was prompted by solicitors for most of the Shipping Companies (except one defendant, "K-Line") sending letters to 21 potential class members before the opt-out period expired, which was set by a collective proceedings order ("CPO") dated 18 February 2022.
The Shipping Companies (except K-Line) challenged the Order via judicial review, actively pursued by four of them. The matter was heard by a Divisional Court also constituted as a Court of Appeal to determine if the proper procedural route was appeal rather than judicial review. The appellants are the Shipping Companies other than K-Line.
Legal Issues Presented
- Do the Competition Appeal Tribunal Rules 2015 ("the Rules") impose the restriction preventing defendants from communicating directly with class members without Tribunal permission ("the Restriction")?
- If not, did the Tribunal impose the Restriction exercising its case management powers?
- If not, should the Order be upheld because it is highly likely or appropriate that the Tribunal would or should have made the Restriction under its case management powers?
Arguments of the Parties
Appellants' Arguments
- The Letters sent to large business purchasers fairly represented the Tribunal’s position on disclosure and served a legitimate purpose in alerting these members before the opt-out deadline.
- The Restriction is not expressly contained in the Rules and cannot be implied as necessary; it is inconsistent with the Rules, Canadian jurisprudence, and article 10 rights.
- The Tribunal’s case management powers can impose restrictions on communications but should not imply a blanket prohibition.
- The Restriction interferes with litigation privilege, the defendants’ ability to conduct their defence, and their legitimate business interests.
- The proper procedural route for challenge is judicial review, but this court should determine if appeal is appropriate.
Respondent's Arguments (MMCR)
- The Rules, properly interpreted, preclude direct communications from defendants to class members without Tribunal permission to protect the collective proceedings regime.
- The class representative is entrusted with communications with class members, and direct communications from defendants risk undermining this role.
- The Tribunal’s Order was justified either on the interpretation of the Rules or, alternatively, on case management powers.
- The Restriction is necessary to ensure fairness, protect the class, and avoid undue influence on the opt-out process.
- The procedural route for challenge should be judicial review, but the court should consider recent authorities on appeal rights.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Sainsbury's Supermarkets Ltd v Visa Europe Services LLC and Mastercard Inc [2020] UKSC 24 |
Context and authority on collective proceedings before the Tribunal |
Referenced as part of the background on collective proceedings |
| Mastercard Inc v Merricks [2020] UKSC 51 |
Clarification of collective proceedings and appeal rights |
Used to discuss appeal rights and interpretation of the Rules |
| Lloyd v Google LLC [2021] UKSC 50 |
Nature of representative and collective proceedings |
Referenced in comparing collective proceedings with other group litigation |
| Le Patourel v BT Group PLC [2022] EWCA Civ 593 |
Case management and protection of class interests |
Used to illustrate Tribunal’s case management powers |
| LSER and others v Gutmann [2022] EWCA Civ 1077 |
Jurisprudence on collective proceedings |
Referenced regarding procedural aspects |
| MOL (Europe Africa) Ltd and others v Mark McLaren Class Representative Ltd [2022] EWCA Civ 1701 |
Appeal in these proceedings |
Discussed in procedural context |
| Evans v Barclays Bank Plc & Others [2023] EWCA Civ 876 |
Interpretation of appeal rights under s.49(1A)(a) Competition Act 1998 |
Central to determining whether appeal or judicial review is the proper route |
| Paccar Inc & others v Road Haulage Association Ltd [2021] EWCA Civ 299 |
Scope of appeals from Tribunal decisions |
Discussed in relation to appeal rights and judicial review |
| Enron Coal Services Ltd v English Welsh & Scottish Railway Ltd [2010] Bus LR 28 |
Jurisdiction to hear appeals from Tribunal decisions |
Used to explain appeal jurisdiction |
| Merricks v Mastercard Inc. [2018] EWCA Civ 2527 |
Appeal jurisdiction in collective proceedings context |
Explained limits of appeal rights |
| R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3 |
Principles of statutory interpretation |
Applied to interpret the Rules |
| R (Black) v Secretary of State for Justice [2017] UKSC 81 |
Principles on implication in statutory interpretation |
Used to reject implication of restriction unless necessary |
| R v Derby Magistrates Court Ex p B [1996] AC 487 |
Litigation privilege principles |
Applied to assess impact of the Restriction on privilege |
| Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610 |
Legal professional privilege |
Used to affirm inviolability of privilege despite case management considerations |
| DPP v Ziegler [2020] QB 253 |
Framework for Article 10 analysis |
Applied to assess freedom of expression issues |
| Municipio de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951 |
Group litigation orders and case management |
Referenced in comparison to collective proceedings |
| ALS Society of Essex County v Corp of the City of Windsor [2016] ONSC 676 |
Canadian class proceedings and communication rights |
Used to illustrate Canadian approach rejecting blanket communication bans |
| Del Giudice v Thompson [2021] ONSC 2206 |
Canadian class proceedings communication guidance |
Quoted for practical approach to communications with class members |
Court's Reasoning and Analysis
The Court undertook a detailed statutory interpretation of the Competition Appeal Tribunal Rules 2015, applying established principles that an implication in legislation must be necessary and "compellingly clear". The Court found no express wording in the Rules imposing the Restriction and concluded that such a prohibition could not be implied as necessary. The Court emphasised that the Rules were drafted against a backdrop where no such general restriction existed in other forms of collective civil litigation, and that the Tribunal’s own case management powers provide a flexible mechanism to impose communication restrictions on a case-by-case basis if justified.
The Court analysed the role of the class representative, recognising its fiduciary duties and supervisory vetting by the Tribunal, but rejected the submission that this role necessitates a blanket communication ban. It noted that solicitors representing claimants in other forms of litigation owe similar duties without such a prohibition.
The Court highlighted practical consequences of the Restriction, including interference with litigation privilege, defendants’ ability to gather evidence, and legitimate business interests, concluding these weigh against implying the Restriction.
Canadian jurisprudence was considered persuasive, showing that a blanket communication ban is not necessary to protect the fairness of class proceedings.
On the procedural issue, the Court concluded that the proper route for challenge is by way of appeal under s. 49(1A)(a) of the Competition Act 1998, as the Order concerns a point of law arising from a decision "as to the award of damages or other sum". This conclusion was supported by detailed analysis of relevant case law, including Evans v Barclays and Paccar.
Regarding whether the Tribunal imposed the Restriction as a case management order alternatively, the Court found no indication in the Tribunal’s reasoning that it exercised case management powers to make the Order. The Tribunal’s comments on the Letters did not amount to an alternative basis for the Order, and the absence of detailed reasoning on such a basis further supported this conclusion.
The Court declined to uphold the Order on the basis that the Tribunal should have made it under its case management powers, noting that this would require detailed submissions and evidence better addressed by the Tribunal itself.
The Court noted the competing interests under Article 10 ECHR but preferred not to express a concluded view on proportionality given the other clear reasons for allowing the appeal.
Holding and Implications
The Court granted permission to appeal and ALLOWED THE APPEAL, concluding that the Competition Appeal Tribunal Rules 2015 do not impose the Restriction on defendants communicating directly with class members without Tribunal permission. The Order made by the Tribunal was therefore set aside.
The direct consequence is that defendants in collective proceedings before the Tribunal may communicate directly with class members unless and until the Tribunal imposes a restriction by case management order in particular circumstances. The decision does not establish a new precedent limiting the Tribunal’s case management powers but clarifies that any blanket communication prohibition must be expressly provided for in the Rules or imposed by case management discretion, not implied.