As analogies go, Sir Christopher Bellamy’s retirement from the Competition Appeal Tribunal (CAT) was the judiciary’s version of Magnus Magnusson filing away his question cards on Mastermind.
How do you fill the shoes of a personality who was synonymous with that institution? It’s a tall order.
So spare a thought for Gerald Barling QC, the new president of the CAT.
Barling comes from Brick Court Chambers, where he has practised as a specialist competition and technology barrister for the last 35 years.
The legal market’s reaction when finally, after eight months, a successor was named was unanimously positive. Speaking to solicitors and barristers, it is hard to garner an opinion on Barling that does not include the words “sensible”, “commercial” or “very clever”. One comment – that as BT’s go-to counsel for many years he will have to recuse (ie step down) himself from a slew of telecoms cases coming to the CAT from Ofcom – is indicative of his high standing at the bar.
The closest to a whiff of negativity comes from a magic circle partner, who concedes (when pushed) that he thinks Barling may be a touch old-fashioned. “I’m not sure how used he is to the rough-and-tumble,” whispers the partner. “As we know, antitrust litigation is far more gloves-off these days.”
But do not think for a minute that Barling is a delicate sort. DLA Piper Europe, Middle East and Africa (Emea) head of competition, transport and trade Mike Pullen, who has instructed Barling in the past, says: “I honestly believe that Gerald is a great advocate and a very good technical lawyer. He’ll be his own man in the CAT. He certainly doesn’t mince his words.”
Which is just as well. Bellamy, who is now a senior consultant at Linklaters, was well known for being forthright. As well as praise to make Barling blush, another thing that City lawyers agree on is that the CAT is very much Bellamy’s baby.
Understandably so: Bellamy set up the CAT in 1999 and wrote its rules. A judge with impressive credentials before he founded the CAT, Bellamy had spent seven years in Luxembourg as a judge at the Court of First Instance.
Little surprise, then, that he took a more European approach to case management and was fond of discursive judgments. One reached 100 pages. Solicitors and barristers are hoping that Barling might employ a domestic slant to case management.
One barrister comments: “In the CAT, Sir Christopher had a strong agenda on two levels. Firstly, there was strict scrutiny of the regulators. He expected them to enforce their role as prosecutors of competition infringements and was intolerant of their pleas of inadequate resources. Secondly, he was very pro-claimant in his approach to the few decisions brought in the CAT under Rule 47A of the Competition Act.” The rule in question allows any person who has suffered from anticompetitive behaviour to bring an action in the CAT against the alleged guilty party.
The Office of Fair Trading (OFT) certainly got its fair share of criticism from the CAT under Bellamy’s watch. In Hasbro’s appeal over price-fixing in toys and games, the CAT said the OFT’s witness statements were poorly drafted, for instance.
That said, one head of competition at a top-10 firm objects that Bellamy was not anti-OFT, just misunderstood. “Rather than just slapping non-infringement decisions on them,” he argues, “Bellamy gave the OFT the opportunity to go back and look over the work where he thought there were holes.”
For someone who has spent a lot of his career defending his main client BT against Ofcom, it will be surprising if Barling suddenly becomes lenient with regulators in his new position.
The regulators will certainly be interested in discovering whether it is business as usual at the CAT, or whether Barling will be changing tack.
Barling does have the advantage of coming straight from the bar, after all. He is in touch with both barristers and solicitors and is attuned to their needs. One barrister hopes that this will lead to a greater dialogue between the CAT and its users. He criticises Bellamy for not consulting much with barristers on procedural points. To be fair, Bellamy wrote the rules and therefore had very clear ideas on what the CAT’s procedures should be.
But why did it take so long to find a successor to Bellamy? Money is the easy answer. The CAT needed someone with serious competition experience. A specialist barrister such as Barling easily pockets at least £1m a year, while the president of the CAT earns £165,900, plus pension.
But the issue of remuneration aside (which, after all, is not particular to the CAT), it is also true that, if the Judicial Appointments Commission wanted to find a potential chancery judge with the necessary competition credentials, the pool to pick from was small.
And to be frank, how many chancery judges would want to go to the CAT, even part time? Although the tribunal is important in competition circles, it could be seen as a specialist backwater. The fact that Bellamy did not go to the Court of Appeal on his way out arguably reinforces this.
A competition partner at a top 15 firm says: “The CAT is of huge interest to those of us who are anorak enough to follow these things, but being its president isn’t like being a High Court judge, where they sit on a wide range of issues.” On that point it is noteworthy that Barling became a chancery judge and president of the CAT simultaneously.
Blackstone Chambers’ Brian Kennelly disagrees about the tribunal’s profile. He says: “The CAT is now the central forum for regulatory disputes in this country, not just of competition disputes, but of telecoms too.”
If plans by the Government and OFT to push private enforcement are successful, that profile is on course to grow, as those cases will be heard in the CAT. Which would be a fine legacy for Bellamy, who was such a proponent of private actions.
Moreover, the CAT could ride the wave of the general prominence of English courts as the jurisdiction of choice for disputes. As one magic circle competition partner explains: “The English courts have made some recent decisions that have made litigating in England a more attractive proposition.”
Let’s hope for both Barling and the CAT that this is a trend that has started, but doesn’t finish.