By an order of Sir Kenneth Parker dated 5 July 2016 (“the Transfer Order”) the competition issues in claims HC-2016-000513 Agents’ Mutual Limited v Gascoigne Halman Limited (t/a Gascoigne Halman) (“GH”) and HC-2016-001149 Agents’ Mutual Limited v Moginie James Limited (“MJ”) were transferred to the Competition Appeal Tribunal.
The competition issues are defined in paragraph 16 of the Transfer Order and essentially arise out of contractual provisions governing the participation of the defendants (both firms of estate agents) in an online property portal “OntheMarket” (“OTM”) established by the claimant (a mutual limited company owned by its members, all of whom are estate agents). In particular the competition issues relate to the operation of the “One Other Portal Rule” whereby participants in OTM undertook to list their properties for sale/rent on a maximum of one other portal in addition to listing on OTM.
On 26 July 2016 a Case Management Conference (“CMC”) took place at which the President gave directions to trial and on 13 September 2016 the President made an order establishing a confidentiality ring.
On 14 September 2016 a hearing took place at Victoria House at which the President heard GH and MJ’s applications for security for costs and the Claimant’s application for costs management of the Tribunal proceedings. The President, in his Tribunal capacity, ordered that the Tribunal proceedings be subject to costs management and gave directions for a Costs Case Management Conference (“CCMC”) to take place ( CAT 15). In his capacity as a judge of the High Court, the President made orders that the Claimant pay security for costs to GH and MJ’s applications and gave judgment in relation to GH’s application ( EWHC 2315 (Ch)).
On 19 September 2016, pursuant to paragraph 3 of the Order for costs management, GH applied to set aside that Order in so far as it relates to the proceedings between it and the Claimant on the basis of that there was an agreement or common understanding between them prior to the Transfer Order that there would be no costs management in the Tribunal. Further Orders granting extensions of time for disclosure and certain of the provisions for costs management were made by the President on 23, 26 and 27 September 2016. On 30 September 2016 the President made an Order dismissing GH’s application and a judgment explaining the reasons for that Order was handed down on 7 October 2016 ( CAT 20).
Also on 19 September 2016, GH applied to vary the order for costs of its security for costs application. On 3 November 2016, the President, in his capacity as a judge of the High Court, handed down a judgment dismissing that application ( EWHC 2789 (Ch)).
The CCMC took place on 11 October 2016 and on 21 October 2016 the President handed down a judgment setting GH’s costs budget ( CAT 21).
A pre-trial review took place on 15 December 2016 at which the Chairman (Mr Marcus Smith QC) made an order dealing with various applications brought by GH and AM and also laid down further directions concerning the experts’ joint statements.
The MJ proceedings were withdrawn by consent on 6 January 2017.
On 25 January 2017, the Defendant filed an application for further directions. The Chairman gave a ruling dismissing this application on 27 January 2017 ( CAT 3).
The substantive hearing of the GH proceedings took place over 10 days between 3 and 20 February 2017. A ruling on the Defendant’s application of 9 February 2017 to admit evidence was handed down on 10 February 2017 ( CAT 5).
Judgment in the GH proceedings was handed down on 5 July 2017 ( CAT 15).
A CMC relating to consequential matters in the GH Tribunal and High Court proceedings was held on 12 July 2017 in the Rolls Building. The Chairman sat alone in his dual capacity as Chairman of the Tribunal and Judge of the High Court and made orders on the consequential matters, including in relation to costs and security for costs (see the Tribunal order of 12 July 2017 and the High Court order of the same date).
The Tribunal gave a ruling on the Defendant’s application for permission to appeal on 5 October 2017 ( CAT 22), holding that there was no right of appeal from the Tribunal in the circumstances of this case. In light of that ruling, an order giving effect to the Tribunal's judgment was made on the same day in the High Court by the Chairman in his capacity as Judge of the High Court and the Defendant's application was treated as an application for permission to appeal from that order. Permission was refused by the Chairman in his capacity as Judge of the High Court on 6 October 2017. A renewed application for permission to appeal was subsequently granted by the Court of Appeal.
On 24 January 2019 the Court of Appeal handed down judgment dismissing the Defendant's appeal ( EWCA Civ 24).