The Competition Appeal Tribunal held a conference at Downing College Cambridge on Thursday May 4th 2023, to mark the 20th Anniversary of its establishment as an independent, specialist Tribunal. The subject of the day was the growth of private competition litigation.
The programme for the day consisted of four separate panel-led sessions, each of which was informed by a series of draft papers that had been circulated ahead of the conference.
Session 1: Collective Actions - The implications of claimant - free actions.
In this session, the panel explored the role of the Tribunal in collective actions, where claims of class members are aggregated so that they are managed by a class representative. There are issues about protecting class members’ interests in settlements, the departure from the usual balance which applies between claimants and defendants and the balancing of the interests of other parties, including funders and others who might legitimately benefit from the proceeds of a successful claim.
Moderator: Ben Tidswell (Competition Appeal Tribunal)
Speakers: Professor Rachael Mulheron (Queen Mary University of London)
Scott Campbell (Hausfeld)
Stephen Wisking (Herbert Smith Freehills)
Papers (click the title):
| The Implications of “Claimant-free” Actions | Scott Campbell |
| Collective Actions: The Implications of “Claimant-free” | Stephen Wisking |
Session 2: Economic Evidence in Competition Cases.
This session debated the following issues:
- Is expert economic evidence different from other types of expert evidence and, if so, why?
- What is the role of economists in competition litigation?
- Would earlier discussion and/or agreement on methodology assist the parties and the court?
- What is the role of economic theory as a type of economic evidence in competition litigation?
Moderator: Elizabeth Morony (Clifford Chance)
Speakers: Mr Justice Marcus Smith (Competition Appeal Tribunal)
Helen Ralston-Smith (Oxera)
John Davies (Compass Lexecon)
David Parker (Frontier Economics)
Papers (click the title):
| Evidence and Competition Litigation | Sir Marcus Smith |
|
The Economist and the Judge in Conversation: Economic Experts in the Competition Appeal Tribunal |
Gunnar Niels Helen Ralston-Smith |
| Technicians or Master-Economist? The role of testifying economists in competition litigation | John Davies & Lau Nilausen |
| NORD strategies: An underlying theory of exclusionary abuse | David Parker |
Session 3: Quantification (pass-on and other).
This session addressed key issues and challenges in relation to quantification of loss in competition damages claims; it and the accompanying papers cover the legal principles relevant to quantification as well as the practical and expert challenges these raise. The session discussed the nature and usage of the so-called ‘broad axe’ principle of quantification to address uncertainty in the calculation of damages (and whether the ‘broad axe’ is now deployed in a broader sense straying beyond quantification). In addition, some key issues arising in relation to the computation of interest in competition damages claims were discussed.
Moderator: Mark Sansom (Freshfields)
Speakers: Grant Saggers (NERA)
Belinda Hollway (Scott+Scott)
Daniel Beard KC (Monckton Chambers)
Papers (click the title):
| Ships Passing in the Night: Proving Pass-on | Belinda Hollway |
| Quantification of Damages in Competition Law | Daniel Beard KC |
| Calculating Interest in Competition Cases in the UK: It’s no longer Simple | Grant Saggers |
Session 4: Private actions and public enforcement.
The session discussed the interaction between public and private enforcement of competition law. Discussants covered the CMA’s public enforcement priorities (with elaboration from the panel’s Department for Business & Trade representative) and whether these are and should be affected by private actions; the significant trend of private opt out class claims and the increasing role the CAT plays in resolving complex but pivotal areas of antitrust law, in particular in relation to digital markets; and the increasing role the CMA can play in intervening in private claims, drawing on European practice and US amicus precedent. The session concluded with a discussion of various aspects of competition law enforcement which cannot readily be replicated by private claims (e.g the greater access the agencies have to documentary and witness evidence via their dawn raid and compulsory powers, and their role in administering leniency policy in driving detection) versus benefits of private claims in providing a redress/compensatory function.
Moderator: Nicole Kar (Linklaters)
Speakers: Sarah Cardell (Competition & Markets Authority)
Niall Mackenzie (Department for Business & Trade)
Professor Okeoghene Odudu (University of Cambridge)
Euan Burrows (Ashurst)
Papers (click the title):
The Bellamy Lecture
Thursday 4th May 2023
The conference was followed by the Inaugural Bellamy lecture, given by the first President of the Competition Appeal Tribunal, Lord Bellamy KC.
The full text of the lecture is available here
| The Inaugural Bellamy Lecture | Lord Bellamy KC |