CAT chance

Chancery judges may still be settling in at the Rolls Building, but their responsibilities to the Competition Appeal Tribunal represent an interesting and often complex crossover. By Rhodri Thompson QC

As noted previously by The Lawyer (12 September), the Chancery Division now has new premises, shared with the Commercial and ­Technology Courts, in the Rolls Building.

However, it should not be forgotten that the Chancery judges have another home, as chairs of the Competition Appeal ­Tribunal (CAT), located about a mile west in Victoria House in Bloomsbury Square. ­Victoria House houses not only the CAT, but also the Competition Commission (CC), the body responsible for supervision of UK mergers and other market investigations.

It used to be a rare sight to see a Chancery judge in Victoria House. That has changed since the appointment of Chancery judge Sir Gerald Barling as president of the
CAT, along with the elevation of leading ­competition law silk Sir Peter Roth to sit in the Chancery Division. Both will sit regularly in the CAT in addition to appearing in the Rolls Building.

Recent CAT cases involving Barling J include: the pending appeals against the Ofcom decision on pay-TV sports rights; judicial review challenges by BAA and BSkyB of CC decisions in market and ­merger inquiries; and the series of appeals against penalties imposed on more than 100 companies by the OFT in its cover-pricing decision. Roth J took responsibility for appeals that raised some similar issues against the OFT’s Construction Recruitment Forum cartel decision.

CAT food

The diet of the CAT is a highly unusual blend of public law appeals and reviews and private law actions for damages. Its longest-held jurisdiction is to hear statutory appeals against decisions by the OFT and sector regulators in relation to anticompetitive agreements and abuses of dominant ­positions – for example, since September the CAT has been engaged in hearing six ­related appeals brought by Imperial Tobacco, the ­Co-operative Group, Morrisons, Safeway, Asda and Shell in respect of tobacco pricing.

Since 2003 the CAT has also heard ­judicial reviews in the field of mergers and market investigations and follow-on actions for damages based on decisions by the ­competition authorities, or indeed ­earlier decisions of the CAT itself, as in the pending Albion Water v Dwr Cymru. Since 2004 it has also had ­jurisdiction to hear a variety of other appeals under the Communications Act 2003.

The appeals and review jurisdiction of the CAT is unique. It often raises issues that would not be familiar fare in the Chancery Division. However, the follow-on damages jurisdiction is common to the CAT and to the High Court, so litigants can take a ­strategic view of which is likely to offer a ­better and more cost-effective service.

The High Court has the major advantage in these cases in that it has a general jurisdiction, so that, unlike the CAT, damages claims can be started without having to wait for appeal proceedings to end, reducing both delays and also the risk that a ­defendant might try to ’torpedo’ the claim by starting a case in another jurisdiction.

In addition to Barling J and Roth J, the CAT has a number of other specialist chairs, so the need for part-time help from the other Chancery judges seems likely to remain limited unless there is a major expansion of the CAT’s jurisdiction. In ­practice, and for the foreseeable future, most of the competition law cases heard by other Chancery judges will continue to be High Court actions of one sort or another.

In recent years the main types of case have tended to be allegations of abuse of dominant position, applications for ­interlocutory injunctions and actions for damages following on from cartel decisions by the authorities.

Many such cases are likely to be big-­ticket items and attract leading firms and ­advocates, including not only competition law specialists, but also commercial stars and leading public law silks. In Chemistree Homecare v Teva Pharmaceuticals (2011), while awarding substantial security for costs Mr Justice Briggs stated: “The cost of ­litigating ­serious EU competition issues, especially where cross-border market ­dominance is an issue, is notoriously high.”

Complex arguments

Also, recent cases have raised complex points of law, for example the possible use of representative actions in follow-on ­damages cases – rejected by High Court Chancellor Sir Andrew Morritt and the Court of Appeal in Emerald Supplies & Anor v British ­Airways (2010) – and the appropriate response to ’torpedo’ applications made in other jurisdictions, such as in 2010’s ­Cooper Tire & Rubber Company Europe & Ors v Dow Deutschland Inc & Ors.

One further point to watch out for is that competition law is once again on the ­Government’s reform agenda. Two options under consideration – the adoption of a ’prosecutorial’ model for OFT ­investigations and a relaxation of the rules on class actions in competition law cases, making class awards a realistic possibility – would ­represent fundamental changes to the UK legal landscape.

Particularly in damages actions, where the UK courts have been cautious in the cases decided to date, this would mark a major cultural shift in both the CAT and in the High Court.

Rhodri Thompson QC is a barrister at Matrix Chambers