Competition and Monopolies in UK Law

Mr Carr submits that in many other EU countries those circumstances are regarded as unfair competition. He is probably right about some EU countries, though my general understanding (I could not give chapter and verse) is that in some countries there has been a “rowing back” on what amounts to “unfair competition”. But even if such circumstances amount to unfair competition in some countries, it is surely clear that the concept of “unfair advantage” is an autonomous EU concept.

A second difficulty is that the members of the represented class do not have the same interest in recovering damages for breach of competition law if a defence is available in answer to the claims of some of them, but not to the claims of others: for example, if BA could successfully run a particular defence against those who had passed on the inflated price, but not against others.

A contract in restraint of trade is one in which a party (the covenanter) agrees with any other party (the covenantee) to restrict his liberty in the future to carry on trade with other persons not parties to the contract in such manner as he chooses.

I do not agree that, so far as concerns the proper approach under section 32(1)(b), competition claims are to be treated in principle in any different way to other claims. There are many areas of the law where a cause of action is dependent not simply on the primary facts but rather on whether those primary facts give rise to a particular consequence or inference.

I think that in this respect also, the Court of Appeal was wrong. In the first place, as I have explained, in resolving this particular dispute, Ofcom was not exercising a regulatory function, but resolving a dispute under the unchallenged terms of an existing agreement. But the main problem about the Court of Appeal's view is a more fundamental one.

Lastly, good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.