7 October 2021

BT collective action ruling “could open the floodgates”: Ben Walton and Caroline Harbord write for The Times and Legal Futures

The Competition Appeal Tribunal’s (CAT) approval of a second opt-out collective action is likely to open the floodgates to more applications, claim Head of Commercial Litigation, Benedict Walton and Senior Associate, Caroline Harbord.

In approving a £600m claim against BT, the CAT showed that a collective proceedings order (CPO) can be obtained in claims where primary liability has yet to be established and not just follow-on damages claims.

Commenting on the decision, Caroline Harbord, Senior Associate in our Dispute Resolution team, said the decision was “significant” because it made clear that opt-out CPOs were not limited to “classic follow-on damages claims”, and could also be obtained in claims where primary liability has yet to be established.

The first CPO came in August in the Merricks v Mastercard case, brought after the European Commission made a finding of anti-competitive behaviour.

Caroline continues: “This order – being only the second of its kind issued by the CAT – may well serve to spark an increase in the number of CPO applications going forward…"

“If a class representative can gather together sufficiently compelling evidence of anti-competitive behaviour – so as to render the claim more than ‘fanciful’ – it may be able to successfully obtain an opt-out CPO, even if there hasn’t been a formal finding of anti-competitive behaviour by the European Commission or the Competition and Markets Authority."

“The case, therefore, arguably opens the floodgates in this area.”

Caroline and Ben's comments were originally published by Legal Futures and have also been featured by The Times in their article '‘Opt-out’ order opens door to more collective proceedings' (subscription required).

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