Court of Appeal rules that defendants to collective proceedings can communicate with class members

11/12/23

In November 2022, the Competition Appeal Tribunal issued a decision finding that the Tribunal’s Rules impliedly preclude any communication between a defendant and a member (actual or contingent) of a class identified or identifiable under a collective proceedings order made by the Tribunal where that communication concerns those collective proceedings, unless the Tribunal otherwise orders or the parties agree. The Tribunal also found that the same restriction arises as between a proposed defendant and a proposed member of the class from the time a collective proceedings application is made. See here.

On 8 December 2023, the Court of Appeal (Popplewell LJ and Butcher J) overturned that decision, finding that the Tribunal’s Rules contain no such prohibition. It found that:

1. None of the provisions in the Rules relied on by the Tribunal could bear the weight of giving rise to a necessary implication that defendants’ communications with class members were prohibited (para 82).
2. The Tribunal’s application of the implied prohibition in the collective proceedings at hand had given rise to an invasion of litigation privilege (para 103).
3. The Tribunal’s application of the implied prohibition in another case (CICC v Visa and Mastercard) had given rise to a striking interference with the normal course of business not only of defendants, but also of class members, by requiring defendants to air in public aspects of their settlement strategy in ongoing and potential litigation (para 107).
4. While the absence of a prohibition could also have unwelcome practical consequences, the experience in Canada, where no general prohibition applies, suggests that a general prohibition is not necessary to achieve the purpose of the regime (para 109).

The Court also suggested (see para 115) that the Tribunal may wish to consider issuing a practice direction, or making orders in appropriate cases, to guide the parties as to communications from defendants.

The judgment is available here.