Nippon Yusen Kabushiki Kaisha v Mark McLaren Class Representative Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Mr Justice Butcher |
| Judgment Date | 08 December 2023 |
| Neutral Citation | [2023] EWCA Civ 1471 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Number: CA-2023-002409 |
and
[2023] EWCA Civ 1471
Lord Justice Popplewell
and
Mr Justice Butcher
Case Number: CA-2023-002409
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COMPETITION APPEAL TRIBUNAL
MR JUSTICE MARCUS SMITH P,
EAMONN DORAN and BRIDGET LUCAS KC
[2022] CAT 53
Royal Courts of Justice
Strand, London, WC2A 2LL
Marie Demetriou KC and Daniel Piccinin KC (instructed by Steptoe & Johnson UK LLP and Arnold & Porter Kaye Scholer (UK) LLP) for the Appellants
Sarah Ford KC and Nicholas Gibson (instructed by Scott+Scott UK LLP) for the Respondent
Hearing dates: 15 and 16 November 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 8 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is a challenge to an order of the Competition Appeal Tribunal (Mr Justice Marcus Smith P, Mr Eamonn Dorran, Ms Bridget Lucas KC) (‘the Tribunal’) dated 20 December 2022 (‘the Order’), following its determination in a ruling dated 18 November 2022 (‘the Ruling’) that in collective proceedings before the Competition Appeal Tribunal (‘the CAT’) defendants may not communicate directly with members of the class, save with the permission of the CAT. The Tribunal reached that conclusion as a matter of interpretation of the Competition Appeal Tribunal Rules 2015, which were made by statutory instrument 2015 No 1468 on 7 September 2015 and laid before Parliament the following day (‘the Rules’), pursuant to powers in the Enterprise Act 2002 and the Communications Act 2003.
It is unnecessary to give a general account of collective proceedings before the CAT as a specialist tribunal. The nature, purpose and detail of such proceedings has been considered extensively in a number of recent authorities, including Sainsbury's Supermarkets Ltd v Visa Europe Services LLC and Mastercard Inc [2020] UKSC 24, [2020] Bus LR 1196; Mastercard Inc v Merricks [2020] UKSC 51, [2021] 3 All ER 285; Lloyd v Google LLC [2021] UKSC 50, [2022] AC 1217; Le Patourel v BT Group PLC and another [2022] EWCA Civ 593, [2023] 1 All ER (Comm) 667; LSER and others v Gutmann [2022] EWCA Civ 1077, [2022] ECC 26; MOL (Europe Africa) Ltd and others v Mark McLaren Class Representative Ltd [2022] EWCA Civ 1701, [2023] Bus LR 318 (an appeal in these proceedings); and Evans v Barclays Bank Plc & Others [2023] EWCA Civ 876.
The Order was made in collective proceedings brought by the Respondent (‘MMCR’) as class representative against the defendants to the proceedings, who are shipping companies. It was prompted by the solicitors for all the defendants other than the fourth defendant (‘K-Line’) sending a letter to each of 21 potential members of the class prior to the expiry of the opt-out period which had been set by a collective proceedings order made on 18 February 2022 (‘the CPO’). K-Line was subject to the Order but has not participated in the present challenge. I will refer to the defendants in the collective proceedings as ‘the Shipping Companies’.
The challenge to the Order was brought by way of a claim for judicial review brought by all the Shipping Companies except K-Line. It was actively pursued on behalf of four of them. It was listed to be heard by Butcher J and myself as a Divisional Court. In circumstances I will explain, it has been heard by us sitting also as a constitution of the Court of Appeal, so as to be able to determine it, if appropriate, as an appeal pursuant to s. 49(1A)(a) Competition Act 1998 (‘the 1998 Act’). I have concluded that an appeal is the correct procedural route for the challenge, for the reasons given below. The title page of this judgment and nomenclature of the participants has been amended accordingly. Those claimants in the judicial review proceedings who have not actively pursued the challenge have been identified as interested parties, but for ease of exposition I have referred to all the Shipping Companies other than K-Line as the appellants in this judgment, without distinguishing between those four who have pursued the challenge and the remainder who have not actively done so but whose interests align with those who have.
The issues
The main point in issue is whether the Tribunal's conclusion in paragraphs 14 and 15 of the Ruling is correct:
“14. We consider that the Rules preclude any communication between a defendant or that defendant's legal representative and a member (actual or contingent [footnote: in other words, communications are precluded where the period for opting in or opting out has yet to expire, which of course is the position here)] of a class identified or identifiable under a collective proceedings order made by the Tribunal where that communication concerns those collective proceedings, unless the Tribunal otherwise orders or (subject always to the Tribunal's supervisory jurisdiction) the parties agree.
15. We consider that precisely the same restriction arises as between a proposed defendant (or that proposed defendant's legal representative) and a proposed member of the class (i.e., someone who could be a member if a collective proceedings order were made) from the time a collective proceedings application is made.”
The Order was made in terms which did not exactly mirror the terms of paragraphs 14 and 15 of the Ruling. It provided:
“1. The Defendants shall henceforth not communicate with members of the Class on matters concerning these collective proceedings, without the prior permission of the Tribunal.
2. The prohibition in paragraph 1 does not operate to prevent the Defendants communicating with members of the Class in the ordinary course of their business operations.”
Before us, the parties agreed that paragraph 2 was not intended, and has not been treated, as a qualification to paragraph 1, so as to permit communication in the ordinary course of business operations on matters concerning the collective proceedings. Rather, paragraph 2 was included for the avoidance of doubt to reflect the fact that communications in the ordinary course of business operations were not precluded provided that they were not on matters concerning the collective proceedings. This is consistent with the terms of the Ruling, which is unqualified in this respect. The prohibition which the Tribunal imposed, therefore, was on all communications concerning the collective proceedings even where they might be made in the ordinary course of the Shipping Companies' operations. I shall refer to the prohibition in the Order as ‘the Restriction’.
There is a subsidiary issue as to whether the Tribunal made the Order on the alternative basis, if it were wrong on the issue of interpretation of the Rules, that it was exercising its case management powers under the Rules. When giving leave to bring judicial review proceedings, Linden J expressed the view that the Tribunal had not done so, based on an analysis of the terms of the Ruling. MMCR challenges that view; the appellants support it. If MMCR is correct on that subsidiary issue, the challenge must fail because the appellants do not suggest that the Order can be challenged if it was made in exercise of case management powers (which in the judicial review proceedings by which the challenge was made would involve asserting irrationality).
If, on the other hand, the appellants are correct that the Tribunal had not purported to make the order on the alternative basis that it was exercising case management powers, as was the view of Linden J, a further issue arises. MMRC submitted that it is highly likely that the Tribunal would have made the same order under its case management powers, with the result that the outcome for the appellants would not have been substantially different, so as to bar the grant of relief by reason of s. 31(2A) of the Senior Courts Act 1981. The appellants disputed that submission. The submission was framed in those terms by reason of the challenge being pursued by way of judicial review. However, if the correct procedural route is by way of appeal, the issue is different. In those circumstances, Ms Ford submitted that MMCR would have served a Respondent's Notice asking this court to uphold the Order on that case management basis, a basis not (on this hypothesis) relied on by the Tribunal. The appellants resisted that course.
Accordingly the issues may be framed as follows:
(1) Issue 1: do the Rules impose the Restriction?
(2) Issue 2: if not, did the Tribunal impose the Restriction in exercise of its case management powers?
(3) Issue 3: if not, should the Order be upheld on the basis that it is highly likely that the Tribunal would have done so (JR) or that it should have done so (appeal)?
The claim and proceedings to date
The proceedings were commenced by the filing of the claim form by MMCR on 20 February 2020. MMCR is a company incorporated under the laws of England and Wales specifically for the purposes of bringing the proposed collective proceedings on behalf of the class. Its sole director and sole member is Mr Mark McLaren, who has experience of working in consumer-related roles. The proceedings are “follow on” proceedings after a decision of the European Commission in a prior infringement decision adopted on 21 February 2018 in Case AT.40009 – Maritime Car Carriers, following a settlement between the Commission and the...
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