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Competition Appeal Tribunal rules that defendants to collective proceedings cannot communicate with class members


The Competition Appeal Tribunal has considered, for the first time, the extent to which defendants (or proposed defendants) to collective proceedings issued in the Tribunal are permitted to make direct contact with class members (or proposed class members). The issue came about in connection with the collective action brought by Mark McLaren Class Representative Limited relating to the cartel in intercontinental deep-sea shipping.

A collective proceedings order (“CPO”) was made in those proceedings in May this year, following a contested certification hearing in November/December 2021. The CPO was granted on an opt-out basis. Two weeks before the end of the opt-out window, letters were sent on behalf of the First to Third and Fifth to Twelfth Defendants to the collective proceedings (the “Relevant Defendants”) to a number of companies that they had identified as likely class members.

In its judgment handed down on Monday of this week, the Tribunal considered the extent to which it is permissible for defendants to collective proceedings to make contact with class members. The Tribunal held that:

  • The Tribunal’s Rules preclude any communication between a defendant and a member (actual or contingent) 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 the parties agree (at paragraph 14).
  • The same restriction arises as between a proposed defendant and a proposed member of the class from the time a collective proceedings application is made (paragraph 15).

The judgment is available here.

Sarah Ford KC and Emma Mockford appeared for the Class Representative, instructed by Scott+Scott UK LLP. Sarah O’Keeffe is also acting for the Class Representative in connection with the collective proceedings.

Daniel Piccinin appeared for the Relevant Defendants, instructed by Arnold & Porter Kaye Scholer (UK) LLP, Steptoe & Johnson UK LLP, Baker Botts (UK) LLP and Wilmer Cutler Pickering Hale and Dorr LLP.