2 Parties and Group Litigation

This chapter discusses the special considerations that apply to identifying the relevant parties in competition litigation as well as the way that claimants may group together to commence collective proceedings. It first explains private actions in the High Court, with emphasis on the nature of claimant and defendant. It considers the category of claimant under Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) and under the Competition Act 1998, along with the concept of ‘undertaking’, parent companies, subsidiary companies, and sister companies in relation to the defendants. The chapter also examines representative actions in the High Court during group litigation, collective proceedings in the Competition Appeal Tribunal (CAT), and settlement of collective proceedings. Different types of collective settlement are highlighted.

8 Interim Remedies

This chapter considers interim remedies that are available in the High Court and the Competition Appeal Tribunal (CAT), with a focus on interim injunctions, interim payments, security for costs, and stay of proceedings. It begins with a discussion of the High Court’s jurisdiction to grant interim or interlocutory injunctions, from interim injunctions in general to mandatory injunctions, quia timet injunctions, freezing injunctions, search orders, anti-suit injunctions, and interim injunctions in aid of foreign proceedings. It also describes the practice and procedure to be followed on an application for an interim injunction, before analysing interim payments, security for costs, and stay of proceedings in greater detail. Finally, it examines interim remedies in the CAT, taking into account a range of issues relating to interim orders in appeals, interim injunctions in private actions, interim payment, security for costs, and stay of proceedings.

12 Factual Evidence

This chapter examines the use of factual evidence in cases involving a breach of competition rules. Potential sources of factual evidence range from the evidence of witnesses to statements of case and application notices supported by a statement of truth, contemporaneous documents, affidavits, and the admissions of other parties to the alleged anti-competitive agreement or concerted practice. The chapter first provides an overview of factual evidence used in High Court proceedings, including witness evidence and sources other than witness statements, as well as the formal requirements for witness statements. It then explores issues such as confidentiality, hearsay notices, witness summaries and summons, video links, depositions, and letters of request. It also discusses the use of factual evidence in Competition Appeal Tribunal (CAT) proceedings, focusing on issues such as admissibility and the admission or exclusion of fresh evidence.

15 Hearings

This chapter focuses on practice and procedure in hearings conducted in the High Court and in the Competition Appeal Tribunal (CAT). It first considers the preparation for hearings, taking into account the relevant rules, namely Civil Procedure Rules (CPR) and CAT Rules, as well as case management, location of proceedings, treatment of confidential information, skeleton arguments and their publication, preparation of bundles of documents, and site visits. The discussion then turns to how hearings are conducted, focusing on factors to consider such as the venue, witnesses, time limits, and transcripts. The chapter also examines matters consequent upon hearings, such as handing down and reporting of judgments, along with their publication and costs. Finally, it explains how applications for permission to appeal in the High Court and in the CAT are made.

10 Burden and Standard of Proof

This chapter examines issues of burden and standard of proof that arise in competition proceedings. It first provides an overview of relevant terminology such as burden, legal burden, evidential burden, and standard of proof before discussing the burden of proof, presumption, and standard of proof with regard to civil claims and criminal cases. It also considers the burden of proof, standard of proof, and presumption of innocence in appeals made to the Competition Appeal Tribunal (CAT) against infringement decisions. In particular, it explains the criminal nature of the appeal proceedings and shows that the legal burden of proving the infringement remains on the Competition and Markets Authority (CMA). The CAT decisions in Napp Pharmaceutical Holdings v DGFT, Claymore Dairies v OFT, and Flynn Pharma Ltd & Pfizer CMA with respect to standard of proof and presumption of innocence are cited.

6 Applicable Law

This chapter discusses the principles that govern the applicable law for cases involving a breach of the competition rules. It begins with an overview of the relevant legal framework applicable to restrictive conduct since 1996, with emphasis on Regulation (EC) 864/2007 on the law applicable to non-contractual obligations from 11 January 2009 to date (Rome II), the Private International (Miscellaneous Provisions) Act 1995 (from 1 May 1996 to 10 January 2009), and English common law principles (prior to 1 May 1996). It also considers the temporal, material, and geographical scope of Rome II, along with its special rules for determining the applicable law to ‘acts restricting free competition’, the affected market, non-compensatory remedies, and unfair competition. The chapter concludes with an analysis of the relevant principles of Rome I that govern the applicable law to contractual obligations.

7 Strike-Out and Summary Judgment

This chapter examines how strike-out and summary judgment are applied by the High Court and the Competition Appeal Tribunal (CAT) for the summary disposal of competition law pleadings. It begins with a discussion of strike-out and summary judgment in the High Court, focusing on how they relate to one another and to amendment, the relevant considerations on a strike-out or on a summary judgment, and the procedure for making an application for summary dismissal. The relevant tests for strike-out and summary judgment are highlighted, and examples of successful and unsuccessful applications are given. The chapter also explains the summary disposal in the CAT before concluding with an overview of the standard of pleadings required to avoid strike-out in the context of competition litigation.

24 Competition Litigation in Northern Ireland

This chapter examines the general practice and procedure governing competition litigation in Northern Ireland, with particular emphasis on competition law issues. It begins with an overview of the legal system in Northern Ireland, the litigation of private law competition claims in the High Court and in the Competition Appeal Tribunal (CAT), and the rights of parties to commence collective proceedings in group litigation. It then considers the principles governing limitation and time periods for proceedings, the issue of jurisdiction in proceedings, and how an application for the grant of interim relief is made. It also analyses discovery and access to documents, the use of factual evidence and expert evidence, conduct of hearings, how final orders are issued, and how damages are assessed and awarded. Finally, it explores funding and costs in competition litigation, the governing rules on appeals and references, criminal proceedings, arbitration proceedings, and alternative dispute resolution.

5 Jurisdiction

This chapter considers the legal framework for determining the applicable jurisdiction in claims based on breaches of competition law. It first describes the difficulties in determining the applicable jurisdiction when commencing proceedings, the body of jurisdictional rules used in competition law cases, the standard of proof to determine jurisdiction, when courts determine jurisdiction, the date on which jurisdiction is determined, and how jurisdiction of a court to hear a claim affects the claim’s admissibility. The discussion then turns to the jurisdictional rules applied by the High Court and the Competition Appeal Tribunal (CAT) for EU defendants and non-EU defendants, with emphasis on the relevant provisions of the Judgments Regulation. The chapter concludes with a summary of the English common law jurisdictional rules that continue to apply outside the scope of the Judgments Regulation and which therefore applies to non-EU defendants.

11 Effect of Previous Decisions

This chapter examines the impact of previous decisions in competition litigation, and more specifically the extent to which previous determinations on factual and legal issues are admissible, persuasive, or binding in subsequent proceedings. It begins with a discussion of prior judicial decisions, focusing on how questions relating to the application of Articles 101(1) and Article 102 of the TFEU should be interpreted with the principles laid down by the Court of Justice of the European Union (CJEU). It then considers prior infringement decisions adopted by the competition authorities, taking into account the binding nature of such decisions as well as their personal scope. It also describes the scope and extent of the infringement that is said to be binding, findings of fact and whether they are binding or not, the decisions of other national competition authorities, and the issue of penalties and the principle of double jeopardy.