Judgment (Certification and Limitation)

The Tribunal’s judgment in relation to the Proposed Class Representative’s (“PCR”) four applications for collective proceedings orders (“CPOs”) on behalf, it is said, of millions of consumers, for alleged abuses by Vodafone, EE/BT, Hutchison 3G (“Three”) and Telefonica UK (“O2”) (together, the “Proposed Defendants”), respectively, of a dominant position in the UK market for the supply of mobile telephony services to the customers of each mobile network operator (“MNO”) (together, the “CPO Applications”).

The collective proceedings seek to combine standalone claims on behalf of natural persons, including sole traders, who, as customers wishing to purchase mobile telephone services, entered into at least one combined handset and airtime contract (“CHA contract”) with the Proposed Defendants, pursuant to which contract(s) the customer:

• agreed to make regular payments over a minimum contractual term (the “Minimum Term”) to pay for: (i) a mobile telephone handset or device (“Handset”); and, as part of the same contract, (ii) other mobile telephony services (in particular services that enable the customer to make telephone calls, send text messages and/or use mobile data) (“Airtime Services”); and
• continued, even after the Minimum Term had expired, to be required to pay, and to pay, an amount in excess of the sum payable in respect of the supply of Airtime Services, i.e. a charge that was not reduced to reflect the fact that the customer had, by the end of the Minimum Term, already paid for the Handset.

This alleged overpayment is defined by the PCR in each case as a “Loyalty Penalty”.

In addition to the CPO Applications, the Tribunal considered the following applications:

1. An application by all four Proposed Defendants for strike out and/or reverse summary judgment of all claims for losses that arose before 1 October 2015 (the “First Period Application”).
2. An application by Vodafone, EE/BT and Three (the “SPA Applicants”) for strike out and/or reverse summary judgment of all claims for losses that arose between 1 October 2015 and 8 March 2017, alternatively on or prior to 8 March 2017 should the First Period Application be unsuccessful (the “Second Period Application”).

The First Period Application

The Proposed Defendants’ position on the Second Period Application was that rules 119(2)-(4) of the 2015 Rules apply in respect of claims that arose before 1 October 2015, but which had not been commenced before that date. Those rules expressly direct rule 31(1)-(3) of the 2003 Rules as being the relevant limitation provisions for such claims. Rule 31(1)-(3) of the 2003 Rules prescribes a two year limitation period for claims arising before 1 October 2015 but commenced in the Tribunal after that date, meaning that any claims for losses that arose before that date were time-barred by the time of filing on 28 November 2023.

The PCR objected the First Period Application and contended that the time limits set out in domestic limitation legislation were the “default” at the relevant time. The wording of rule 31 of the 2003 Rules is not capable of applying to standalone claims and, as such, applies only to follow-on claims arising prior to 1 October 2015.

The Tribunal considered, as agreed between the parties, Section 47E of the Competition Act 1998 (“CA98”) did not apply to claims arising prior to 1 October 2015. Prior to the introduction of section 47E, the pre-existing position in respect of limitation of claims specifically before the Tribunal was governed by rule 31 of the 2003 Rules. The 2003 Rules were revoked on the introduction of the 2015 Rules (rule 118) and the savings from that revocation are provided for by rule 119 of the 2015 Rules, including expressly in relation to rule 31.

The nub of the dispute related to the proper construction of rule 119(2) of the 2015 Rules and, in particular, whether rule 31(1) to (3) of the 2003 Rules applies to the standalone claims arising before 1 October 2015 (the “First Period claims”).

The Tribunal concluded that rule 31 of the 2003 Rules applied. The starting point for determining whether rule 119(2) is that the claim is required to fall within rule 119(3). In this regard the Tribunal considered:

• The claims to which the First Period Application arose before 1 October 2015 and rule 119(3)(b) was satisfied.
• The requirement in rule 119(3)(a) requires that section 47A CA98 applies to the claim. The Tribunal considered that this was a reference to section 47A CA98 following the substitution effected by the Consumer Rights Act 2015 (“CRA15”), which came into force on 1 October 2015 (the same date as the 2015 Rules). In other words, sub-paragraph (3)(a) includes standalone damages claims which fall within the scope of section 47A following the amendments made by CRA15.

The Tribunal concluded that, on the basis of its construction of 119(3)(a), the First Period claims do fall within the scope of rule 119(3) and, on that basis, it did not consider that the application of the rule 119(2) presented any difficulty. 

The Tribunal did not consider that any difficulty arose in applying rule 31(1) to (3) of the 2003 Rules to the claims in relation to the First Period Application.  The only issue seemed to arise in respect of rule 31(2) because of the reference to the “later of the following” combined with the fact that sub-paragraph (2)(a) refers to “the end of the period… in relation to the decision on the basis of which the claim is made”.  On this basis, the PCR argued that, as the claims to which the First Period Application related to were standalone claims, there was no decision on which they were based and, accordingly, rule 31(2) was in some way unworkable. The Tribunal did not accept this argument. Insofar as there is no decision upon which the First Period claims are made, there is simply no date for those claims to be determined under rule 31(2)(a).  It follows that the “later” date will be that determined by rule 31(2)(b), which is far from unworkable.

The Tribunal considered there was never a “default” position governing limitation and prescription before the Tribunal in the absence of the Tribunal’s own rules as its procedures for bringing claims for damages before it have always been regulated by its own rules.

Despite being under the heading “savings”, the Tribunal considered that the plain meaning of the wording of rule 119(2) indicated the purpose for which rule 31(1) to (3) of 2003 Rules are being preserved – in order to determine the limitation or prescriptive period to apply to those claims which fall within the scope of paragraph (3).  The Tribunal did not consider that this plain meaning is overridden by the heading.

Far from impeding standalone claims arising before 1 October 2015 before the Tribunal, the Tribunal’s construction of rule 119(2) gives effect to a clear policy choice by the legislator that such claims, together with equivalent follow-on claims, should be subject to the limitation rules contained in rule 31(1) to (3) of the 2003 Rules.

The Tribunal upheld the First Period Application and the claims arising before 1 October 2015 were struck out.

The Second Period Application

It was common ground between the parties that the relevant limitation period under both the Limitation Act 1980 (“LA80”) and the Northern Irish Order was six years.  Accordingly, it was also common ground that the key issues to be determined in relation to the Second Period Application were whether the PCR has a real prospect of showing: (i) that the facts necessary to plead a claim were concealed; and (ii) that those facts were not reasonably discoverable before 28 November 2017 in terms of section 32 of the LA80 or Article 71 of the equivalent Northern Irish Order which is in materially the same terms.

The Tribunal refused the Second Period Application for reasons including:

• The Second Period Application was made prior to the SPA Applicants setting out their respective positions in pleadings, without any disclosure and without hearing from any witnesses. As a result, the evidence is potentially restricted. The SPA Applicants sought to advance an argument on the basis of the “core commercial terms” on which proposed class members (“PCMs”) had contracted without providing any of those terms.
• The Tribunal was satisfied that this issue could not be disposed of in the SPA Applicants’ favour without going to trial. It was an ambitious position of the SPA Applicants to contend that the PCR had no realistic prospect of success at trial based on the contractual terms without disclosing those terms.
• In the absence of such terms, the SPA Applicants relied on inference that a PCM ought to have been on notice of a requirement to investigate a potential competition law claim. The Tribunal was not prepared to conclude on this basis that the PCR has no realistic prospect of undermining the inference which the SPA Applicants attempted to draw.

The CPO Applications

In relation to rule 79(1)(a) of the 2015 Rules, contrary to the Proposed Defendants’ arguments, the Tribunal was satisfied that the proposed class definition sets out a clear class definition – namely those consumers who, after the expiry of the Minimum Term, have made a periodic payment to one of the Proposed Defendants which is in excess of the SIM Only Price.

In relation to Rule 79(2)(e), the Tribunal was satisfied that the approach identified by Dr Davis, the PCR’s expert, was adequate for the purposes of PCMs identifying themselves as members of the proposed class.

Beyond the specific points raised by the Proposed Defendants, the Tribunal was satisfied that the Eligibility Condition was met.

The Tribunal was not persuaded by the arguments raised by the Proposed Defendants during the hearing in relation to the Authorisation Condition for the following reasons:

• In relation to the absence of a legally binding guarantee from the PCR’s funder’s parent company, the Proposed Defendants had not identified any reasonable basis for inferring that the funder will, at some point, no longer be able to access funding from its parent company. They contended the absence of a guarantee was of such significance it would impact the PCR’s ability to act in the interests of the class. This argument was unexplained and no challenge was raised in respect of the funding arrangements which the PCR secured with the funder at the hearing.
• In relation to the Proposed Defendants seeking a right to claim directly under the PCR’s after-the-event policy (“ATE Policy”), they failed to explain how their unspecified “reasonable concerns” that, in the event it becomes necessary to claim on the ATE Policy, either the PCR will not do so or he will be prevented from doing so. Their concerns in relation to the PCR’s age and his country of residence were vague and unspecified.
• The Proposed Defendants put forward no evidence to counter the statement of Mr Warner, an insurance broker, relied on by the PCR. Mr Warner was clear that the cost of obtaining a direct right of enforcement would costs over £1 million.

Following the hearing, concerns were raised by the Proposed Defendants from the content of the annual statement for the year ended 30 June 2025 issued by the funder’s ultimate parent, LCM Ltd. The concerns were ultimately rejected by the Tribunal.

The Tribunal was satisfied that the Eligibility and Authorisation Conditions were met and granted the CPO Applications in all four proceedings.