In January 2013, the U.K. Department for Business, Innovation and Skills published its response to its 2012 consultation on private actions in competition law. (See Response here). Final proposals, which are currently making their way through Parliament, were derived from those responses, and are very similar to those suggested in the consultation. When implemented, which seems likely, the proposals will bring about momentous changes to the U.K. private enforcement system. The proposals, as currently drafted, establish, among other things, the Competition Appeal Tribunal (CAT) as a major venue for competition litigation by increasing its power and jurisdictional reach; opt-out collective actions and settlement procedures for businesses and consumers; and a fast-track process that could significantly impact the volume of competition claims initiated in the U.K.
Of all the proposed changes, the opt-out “Collective Action” procedures have attracted the most attention. An opt-out action is a claim where all members of a category of claimant (a category having a particular claim) will be certified, and will automatically become claimants in the “collective action” unless they “opt-out.” Many of the proposed “Collective Action” procedures are designed to track the U.S. Rule 23 Federal Rules of Civil Procedure “Class Action” proceedings. It has been made clear from the outset, however, that the new UK rules will be similar to, but different from, the perceived litigious class-action procedures of the United States. The proposed changes suggest that the U.K. courts, which are already the forum of choice for competition damages actions in Europe, will possibly become a more claimant-friendly environment, and will give potential defendants increased concern regarding these competition actions.
