Collective proceedings before the UK’s Competition Appeal Tribunal (CAT or Tribunal) have been amongst the fastest developing areas of litigation in the UK in recent years (see our summary for 2022) with no sign of slowdown in further judicial developments any time soon. The latest ruling handed down by the CAT in Pollack v Google looks to set a new direction for its approach in determining rival applications in collective proceedings.  

Carriage dispute

A carriage issue arises in collective proceedings where more than one applicant seeks to act as the class representative in respect of the same or substantially the same claims. When this happens, the CAT must determine which of the proposed class representatives (PCRs) is the most suitable and should have carriage of the proceedings going forward (the carriage dispute)[1].  

FX and Trucks: the CAT’s previous practice 

The main procedural question for the Tribunal in a carriage dispute is whether to determine which applicant can proceed before or at the same time as the so-called certification hearing, where the CAT otherwise decides whether the claims can proceed to trial.  Until now, the CAT considered the issue of carriage in two cases: FX and Trucks.

In these cases, the Tribunal decided to hear the carriage and certification issues together in a combined hearing. Both decisions have since been appealed and heard recently by the Court of Appeal and judgments are pending. In the FX appeal hearing in April 2023 there was some discussion of the CAT’s approach. The Chancellor of the High Court, Sir Julian Flaux, remarked that, while it remained a matter for the CAT, in future there may be advantages to the CAT ruling on the carriage dispute before deciding on certification to avoid the competing PCRs incurring a “mind-boggling” amount of costs in preparation for the combined certification/carriage dispute hearing.

Pollack: the CAT’s new approach

Hot on the heels of the FX and Trucks appeal hearings, Pollack v Google has offered the CAT another opportunity to consider its approach to carriage disputes. Between November 2022 and March 2023 competing applications were brought by Mr Pollack and Mr Arthur, with each seeking to represent an opt-out class in their claims that Google had abused its dominant position in online advertising.

Faced afresh with the issues regarding the treatment of carriage and certification, the Tribunal ruled that in this case there was no advantage in hearing the carriage issue and certification together. It was stressed that the decision in FX was the first of its kind and it should not be determinative of the approach going forward.

Instead, the judgment set out the below indicative points for future carriage disputes in collective proceedings.

• The significant time and costs savings involved in hearing the carriage dispute in advance of certification were key in determining whether the carriage dispute may be dealt with as a preliminary issue.
• Proposed defendants should not – save to assist the Tribunal – be entitled to have much say in picking the party that seeks to carry on collective proceedings against them.
• The PCRs should co-operate to ensure that a hearing of the carriage issue is listed as soon as possible. In particular, issues of service should not hold up the resolution of carriage issues.
• Consistent with the CAT’s previous approach, the Tribunal remained sceptical about utilising the “first to file” test as a means of differentiating the two applicants. It should not be assumed that speed trumps consideration when considering later rival applications. Where a PCR has spent time and money in framing a carefully considered claim (in particular a standalone claim, as opposed to follow-on), some credit ought to be given for framing the claim first.
• As certification is likely to deal with technical (and not merits based) issues of whether the certification criteria are met, it is unlikely to inform the outcome of a carriage dispute.
• The prospect of a disruptive appeal against a carriage dispute judgment is not a good reason to refuse to determine carriage as a preliminary issue.

The CAT’s new approach is a welcome further steer on the management of undoubtedly complex and expensive collective proceedings. Future cases will reveal if the Pollack principles will indeed work in practice and establish a clear judicial approach or if the particularities of each case will prove more determinative as to the management of carriage disputes. The two competing applications filed in relation to Amazon’s ‘Buy Box’ feature mean the Pollack approach will soon be tested.

[1] Rule 78(2)(c), CAT Rules 2015.