27 February 2018

Last week, Bruno Augustin, Aaron Bradley and I attended the annual CDR Winter Competition Litigation Symposium.

A variety of speakers discussed recent developments in the sector, including the role of expert evidence in class action proceedings, the impact of Brexit on competition litigation and lessons from recent competition cases, including the MasterCard consumer litigation.

Bruno Augustin, partner at Haberman Ilett, spoke on a panel considering the future of UK collective redress.  Bruno was joined by Genevieve Quierin of Mishcon de Reya, Marc Israel of White & Case, Rosemary Ioannou of Vannin Capital, and Lauma Skruzmane, Counsel at Boies Schiller Flexner.  Bruno has a particular focus on competition and antitrust disputes and is an active speaker on quantum issues relating to competition law.

In the context of the new opt-out class action regime, the panel debated issues including the evidence required by the Competition Appeal Tribunal (CAT), whether losses should be considered at an aggregate or individual level, and the role of litigation funders.

Bruno suggested that the bar of expert evidence required by the CAT in Merricks v. MasterCard, the second compulsory purchase order (CPO) application to be heard since the introduction of the opt-out regime, was unexpectedly high at this stage of proceedings.  Although he believed that it may be possible to differentiate between sub-classes when calculating pass-on, Bruno contended that modelling a detailed breakdown of overcharge for different sub-classes at an early stage could be more challenging.

Bruno argued that, whilst it may be appropriate to emphasise the individuality of claimants in opt-in class actions, given such difficulties, the CAT should be given more flexibility with regards to opt-out class actions.  Without a policy decision to agree the appropriate level of precision required at the CPO application stage, the bar for expert evidence may be set so high as to render the new regime impractical.

Overall, the CDR Winter Competition Litigation Symposium was an insightful and engaging event, and a useful forum for practitioners in the sector to discuss recent developments and issues.

By Becky House, associate