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RoRo collective action gets the green light


The Competition Appeal Tribunal (the “CAT”) has handed down judgment in respect of an application made by Mark McLaren Class Representative Limited (the “class representative”) for a collective proceedings order. 

The class representative sought to bring opt-out collective proceedings for consumers and businesses who purchased or financed, in the UK, new cars or light and medium weight commercial vehicles between 18 October 2006 and 6 September 2015. It is the class representative’s position that consumers and businesses who purchased such vehicles were required to pay an unlawfully inflated delivery charge because of previous anti-competitive conduct which the Respondents participated in and which was sanctioned by the European Commission in an infringement decision adopted on 21 February 2018. That conduct consisted of the coordination of prices and the allocation of customers with regard to the provision of deep sea carriage services for new motor vehicles.

The application was resisted on numerous grounds by the Respondent shipping companies, including that there were fundamental flaws in the class representative’s proposed methodology for calculating an aggregate award of damages and that the claims of large business purchasers should be brought on an opt-out basis.

Those objections were dismissed by the Tribunal, which concluded that:

  1. Mark McLaren Class Representative Limited should be authorised to act as the class representative.
  2. The claims sought to be combined were eligible for inclusion in collective proceedings.
  3. The collective proceedings should be brought on an opt-out basis.
  4. Compound interest should be certified as a common issue for class members who acquired new vehicles on finance.
  5. The CPO application did not extend to the estates of persons who died before the collective proceedings claim form was issued (and could not be amended so as to include them because of the expiry of limitation). 

The judgment is here

Sarah Ford QC and Emma Mockford acted for the Applicant, Mark McLaren Class Representative Limited, instructed by Scott+Scott UK LLP

Mark Hoskins QC and David Bailey acted for the First to Third Respondents, instructed by Arnold & Porter Kay Scholer (UK) LLP

Tony Singla QC acted for the Fourth Respondent, instructed by Cleary Gottlieb Steen & Hamilton LLP

Marie Demetriou QC and Daniel Piccinin acted for the Fifth Defendant, instructed by Steptoe and Johnson LLP

Sarah Abram acts in the proceedings for the Twelfth Respondent, instructed by WilmerHale LLP