Keep on trucking: CAT grants first ever opt-in CPO

09/06/22

In a judgment handed down this week, the Competition Appeal Tribunal has granted an application made by the Road Haulage Association (the “RHA”) in 2018 for an opt-in collective proceedings order bringing follow-on claims in relation to the European Commission’s Trucks infringement decision. The Tribunal dismissed a parallel application that was made by UK Trucks Claim Ltd (“UKTC”).

The applications made by the RHA, on the one hand, and UKTC, on the other, were different in a number of respects. UKTC’s application was put on an opt-out basis, whereas the RHA’s is opt-in. The RHA’s application also extended to both new and used trucks, whereas UKTC’s application was confined to new trucks only. Both applications were opposed by the various truck manufacturers against whom they were made.

In the Tribunal’s judgment, both applicants met the criteria for authorisation to act as a class representative in the collective proceedings covered by their respective applications. However, it considered that only one class representative should be authorised for one set of proceedings. Permitting two, overlapping collective actions to go ahead would substantially increase the cost and complexity of the proceedings and would be contrary to the governing principle that cases should be conducted at proportionate cost (see §194 of the judgment).

The Tribunal further concluded, having regard to the differences between the two applications, that the RHA’s application was the more suitable of the two for collective proceedings. In particular, it expressed more confidence in the robustness of the RHA’s expert methodology (§216) and considered that the opt-in nature of the RHA’s application gave it a notable advantage in terms of access to claimant data (§223). It therefore proceeded to grant the RHA permission to bring collective proceedings on an opt-in basis, albeit for a narrower class definition than originally sought. 

As regards the scope of the class, the Tribunal found that the inclusion of trucks purchased abroad would be disproportionately complicated. It also limited the period for which claims could be made on the basis of its present understanding of a reasonable run-off period. Finally, it declined to certify compound interest as a common issue for the proceedings at this stage. However, it considered that including both new and used truck purchases in the opt-in class did not lead to a conflict requiring separate representation.

As well as providing guidance on the approach to be taken to competing CPO applications, the Tribunal’s judgment contains some observations on the circumstances in which expert evidence may be adduced by a respondent to a CPO application. In particular, it makes clear that, in the future, the Tribunal’s permission will need to be sought where a respondent or objector to an application for a CPO wishes to serve expert evidence at the CPO stage (see the postscript at §265 of the judgment).

The judgment is here.