Judgment of the Tribunal on applications by the Proposed Defendants ("Apple") in relation to strike-out/summary judgment, jurisdiction and service out.
Apple applied for:
- An order striking out these proceedings, or for reverse summary judgment, in so far as they concern commission charged on transactions carried out via Storefronts outside the UK or via Storefronts outside the EU prior to 1 January 2021.
- An order to set aside the order granting permission to serve proceedings out of the jurisdiction on the same basis.
- An order to set aside the order for an alternative method of service on the basis that there were no exceptional circumstances to justify it.
For the reasons given in the Judgment, the Tribunal unanimously decided that:
- The Proposed Class Representative's ("PCR's") case on the applicable law should not be summarily dismissed as hopeless at this stage, because the PCR has a realistic prospect of successfully establishing that the claim is governed by UK law.
- The PCR has a realistic prospect of establishing that Apple’s conduct falls within the territorial scope of section 18 of the Competition Act 1998 and/or Article 102 of the Treaty for the Functioning of the European Union. The PCR has realistic prospects of success in establishing that Apple’s conduct in relation to transactions effected via Non-UK Storefronts was either (i) implemented in the EU/UK or (ii) foreseeable that it would have an immediate and substantial effect in the EU/UK.
- The Tribunal is the appropriate forum for the trial of the PCR’s claims in relation to commission charged on transactions effected via Non-UK Storefronts.
- The loss of the opportunity to catch up with the Kent proceedings, if service was to be effected in accordance with Article 5 of the Hague Convention, was an exceptional circumstance justifying the order for alternative service.
- There was no breach by the PCR of its duty of full and frank disclosure in relation to the application for permission to serve out of the jurisdiction.
Accordingly, Apple's applications were dismissed.
