Judgment of the Tribunal regarding the application by Mark McLaren Class Representative Limited ("the Applicant") for a collective proceedings order ("CPO") under s.47B of the Competition Act 1998 to bring opt-out collective proceedings for UK-domiciled consumers and businesses who purchased or financed in the UK new or new lease cars and light and medium weight commercial vehicles, excluding those of excluded brands ("the CPO Application").
The proposed collective proceedings seeks to combine follow-on claims for damages caused by the Respondents' breach of statutory duty in infringing Article 101(1) of the Treaty on the Functioning of the European Union and Article 53 of the European Economic Area Agreement, as determined by the European Commission in an infringement decision adopted on 21 February 2018 (Case AT.40009 - Maritime Car Carriers) following settlement discussions with the First to Twelfth Respondents.
The First to Eleventh Respondents resisted the CPO Application on various grounds, which included that there are fundamental flaws in the Applicant's proposed methodology and the CPO Application should be struck out. In the event that a CPO is granted on an opt-out basis, it was argued that the CPO should not include "Large Business Purchasers" as it would be more appropriate for collective proceedings on behalf of Large Business Purchasers to be brought on an opt-in basis. The First to Third, Fifth and Sixth to Eleventh Respondents further argued that the CPO Application did not deal adequately with class members who were deceased individuals or dissolved companies, that compound interest should not be certified as a common issue, and the Applicant should not be authorised until it rectified defects in its relationships with its sole director and sole member, Mr Mark McLaren, and the litigation funder.
For the reasons given in the Judgment, the Tribunal unanimously concluded that:
(1) The Applicant meets the authorisation condition.
(2) The claims sought to be combined meet the eligibility condition.
(3) the First to Eleventh Respondents' strike out application is refused.
(4) The collective proceedings should be brought on an opt-out basis, and there should be no sub-division of the class such as to require Large Business Purchasers to participate on an opt-in basis.
(5) The CPO Application does not extend to the estates of persons who died before the collective proceedings claim form was issued and cannot be amended to add the personal representatives of those deceased persons.
(6) Compound interest should be certified as a common issue for class members who acquired new vehicles using a personal contract purchase or hire purchase arrangement.
