The only consumer body able to bring class actions in the UK has slammed the system for being costly, time-consuming and offering little reward.
Speaking at The Lawyer’s antitrust litigation conference last week (25-26 November), Which? head of legal Deborah Prince said that after dedicating 20 per cent of her workforce to a class action against sports retailer JJB Sports and amassing significant legal costs, “it’s not looking likely that we would do it again”.
In 2005, Which? was given the right to bring collective actions against companies that were found to have breached UK competition law.
It was the only group to be given the power, which, said Prince, “was not great because it put the onus on us to succeed and doesn’t give the consumer any choice”.
It was not until 2007 that Which? brought its first collective action after the House of Lords upheld an antitrust claim brought by the Office of Fair Trading (OFT) against JJB Sports.
In January JJB agreed to pay out more than £18,000 to those who bought overpriced replica football shirts between 2000 and 2001 (The Lawyer, 9 January).
However, despite an intensive media campaign by Which? – including a front-page splash in The Sun newspaper – take-up for the compensation was low, and the action named just 500 individuals.
Prince said the case had been a “journey of discovery” that had thrown up some practical issues with class actions. “Passage of time is the biggest problem,” she said.
In particular, while JJB was fined by the OFT in 2001, the retailer brought a series of challenges against the ruling, and it was only when these had finished in 2007 that Which? was able to bring a class action.
Anyone wishing to make a claim would need proof of purchase, Prince said, adding: “I have a 17-year-old son who I’ve bought loads of clothes for. How am I supposed to remember what I bought six years ago? Would anybody?” The low value of individual payouts – £20 per consumer – gave little incentive for claimants to participate.
“We tried to make it simple, but it’s a lot of hassle for just £20,” said Prince. “Costs are up for discussion at the moment, but we used a lot of internal time – we had one person working on the cases for six months.
“The proportionality of the whole thing was a real problem, as was our reach, and I’m not sure what else we could have done.
“Would we do it again? Never say never, but it’s not looking likely.”