Judgment (Costs and next steps)

Judgment of the Tribunal in connection with:

1. An application by the Secretary of State for Transport (“SoS”) for its costs of giving disclosure.
2. An application by the Defendants (“Ds”) and the SoS for their costs thrown away by reason of the Class Representative’s (“CR”) change of economic expert.
3. Whether the Tribunal should order a preliminary trial concerned with issues of regulatory breach.
4. An application by the Ds for the CR to produce a witness statement answering a list of questions raised in correspondence, and to attend for cross-examination.

In relation to (1), the Tribunal held that the question whether the CR should pay the SoS’s costs of the disclosure exercise should be reserved until the outcome of the trial in the proceedings.

As regards (2), the Tribunal was satisfied that the change in the CR’s economics expert has resulted in wasted costs for the Ds and the SoS, and it was right that the CR should pay the costs thrown away. However, the Tribunal stated that it did not have enough material before it to carry out a summary assessment, and so the costs thrown away will be the subject of a detailed assessment. The Tribunal was prepared to order an interim payment on account of costs of £100,000.

In respect of (3), at the CMC held on 6 and 7 February 2025 (the “February 2025 CMC”) the Tribunal suggested that the parties should consider having a first trial about the issue of whether the differential pricing approach of the Ds was in breach of the relevant regulatory regime or were otherwise protected by reason of the regulatory position. The reason for this proposal was that the CR had accepted (and confirmed at the February 2025 CMC) that showing a breach of the regulatory regime was a necessary precondition of his claim succeeding: the regulatory issue was therefore potentially determinative. The Tribunal noted that this case has been on foot for many years and it is danger of becoming one of the sprawling cases described by the Court of Appeal in MOL (Europe Africa) Ltd v Mark McLaren Class Representative Limited [2022] EWCA Civ 1701 at [46]. The Tribunal considered that requiring the parties to have a preliminary trial is a proportionate way of managing the proceedings in the interests of the parties and other litigants.

Finally, as regards (4), the Tribunal noted that it has a duty of active case management. However, this has to be exercised with a view to the governing principles specified in Rule 4 of the Competition Appeal Tribunal Rules 2015. The Tribunal was not persuaded that there had been a serious mismanagement of the case by the CR, such that the Tribunal should consider decertifying the proceedings of its own motion or that it should require the CR to answer questions of the Ds’ choosing in a witness statement or to attend for cross-examination. The Tribunal did not think that the additional costs and time of the CR and the Tribunal that would be incurred were it to accede to the Ds’ application amounted to sensible case management.