Judgment of the Tribunal on an application by the proposed class representative (“Ms Gibson”) for an opt-out collective proceedings order under section 47B of the Competition Act 1998 (the “CPO Application”).
The proposed collective proceedings would combine follow-on actions for damages arising from a decision of the Office of Fair Trading (“OFT”) of 27 March 2014 (Mobility scooters: CE/9578-12) (the “Decision”). In the Decision, the OFT found that the Respondent, Pride Mobility Products Limited (“Pride”), and each of eight retailers selling its mobility scooters had infringed the Chapter I prohibition under the Competition Act 1998 (the “CA”) by entering into agreements or concerted practices covering some or all of the period February 2010 to February 2012, whereby the retailers would not advertise certain models of Pride scooters online at prices below the recommended retail price set by Pride. The class on behalf of whom Ms Gibson seeks to bring the claim is defined as comprising any person who purchased a new Pride mobility scooter other than in the course of a business in the UK between 1 February 2010 and 29 February 2012.
The Tribunal rejected Pride’s submissions that to allow the claim to proceed would infringe Pride’s human rights under Article 1 of Protocol 1 to the European Convention on Human Rights, and further or alternatively the fundamental principle of EU law against retrospective legislation and/or the EU Charter of Fundamental Rights. The Tribunal then considered whether the CPO Application should be granted on the basis of the criteria in section 47B CA and the Tribunal Rules, and in particular the two statutory conditions which must be satisfied for the Tribunal to make a collective proceedings order, namely:
(i) the claims must be considered by the Tribunal to raise the same, similar or related issues of fact or law and to be suitable to be brought in collective proceedings (section 47B(6) CA); and
(ii) the proposed class representative must be authorised by the Tribunal on the basis that it is just and reasonable for that person so to act in the proceedings (section 47B(8)(b) CA).
Having considered the applicable criteria, the Tribunal adjourned the CPO Application for the reasons set out in the Judgment with permission for the Applicant to file and serve a draft amended claim form and further expert evidence in accordance with the Judgment, accompanied by a revised costs budget.
