We were delighted to support the GCR Interactive: Competition Litigation conference which took place earlier this week.
The ongoing impact of the Covid-19 pandemic meant that the conference was hosted online, rather than at the Herbert Smith Freehills London office as in previous years. However, with a distinguished line-up of expert speakers and panellists – including Kim Dietzel, co-head of Herbert Smith Freehills’ competition litigation practice – the conference proved nonetheless to be an excellent opportunity to explore some of the key current themes in competition litigation.
Highlights from the discussions included:
- Insights from leading practitioners as to the impact of Brexit on the future of competition litigation in the UK: the overall verdict was an encouraging one, envisaging a robust future for competition litigation in the UK despite some remaining uncertainties. As noted by Daniel Beard QC, competition damages actions tend to have a long “lead time” in practice, and we are likely to see follow-on damages claims based on European Commission decisions taken before 31 December 2020 for many years to come. With regard to the risk of divergence between UK and EU competition law post-Brexit, keynote speaker Christopher Vajda QC suggested that this seems more likely in cases involving abuse of dominance, but he was hopeful that Brexit will act as a competitive spur to both the UK and EU authorities to adopt each other’s best practices.
- Consideration of procedural differences across Europe and the impact on case strategy: the first panel discussion highlighted some important procedural differences in different European jurisdictions, and offered some interesting insights into the impact on case strategy. Whilst the EU Damages Directive has harmonised some aspects in terms of a minimum procedural framework for competition damages claims, in practice there are still considerable differences between jurisdictions, especially in terms of key issues such as approach to disclosure and the use of expert evidence, as well as consolidation/centralisation of claims. One of the clear takeaways from the discussions was the importance of taking a co-ordinated approach when facing multiple claims in multiple jurisdictions, and being alert to risks such as the potential for disclosure in one jurisdiction to be used in other proceedings in other jurisdictions.
- Speculation as to the outcome of the appeal to the Supreme Court in Mastercard v Merricks: with the Supreme Court’s crucial judgment on the correct approach to certification of collection competition claims still awaited, Mark Sansom (Freshfields) suggested that this delay may indicate that the outcome will be a judgment which is not wholly supportive of the approach taken by either the Competition Appeal Tribunal or the Court of Appeal. He also considered that whatever the outcome in Merricks, the judgment will not necessarily dictate the answer to the question of certification for all future cases. Anthony Maton (Hausfeld) agreed that there is likely to be a substantial increase in collective claim applications being brought post-Merricks, whatever the outcome, as the judgment will result in increased legal certainty (the lack of which currently acts as a disincentive for claimant representatives and third party funders).
- Insights into the implications for defendants of facing both individual and collective claims in parallel: the second panel discussion focussed on collective actions, including some interesting insights from Kim Dietzel (Herbert Smith Freehills) regarding a defendant’s objectives when dealing with competition damages claims, and how these are impacted when facing both individual and collective claims in parallel (as we have seen in several of the recent cases). She emphasised the importance of being able to properly defend a claim through factual exploration of effects (if any) resulting from an infringement, ensuring that if there is loss, there is clarity as to where it fell, and ultimately reaching a truly compensatory outcome. When facing both individual and collective claims, a defendant will need to consider whether to use the same expert and legal counsel for all proceedings, and be alert to the impact of a collective claim on a number of tactical considerations, including for example in relation to the approach to pass-on, the economics for the claimant of raising additional points outside the scope of the underlying infringement decision, and the potential to resolve the claim through settlement.