Judgment of the Tribunal in connection with an application for a collective proceedings order (“CPO”) on an opt-out basis brought by Bulk Mail Claim Limited (the "PCR") against International Distribution Services PLC (Formerly Royal Mail PLC) (the "Proposed Defendant").
The claim “follows on” from Ofcom’s 14 August 2018 decision entitled “Discriminatory pricing in relation to the supply of bulk mail delivery services in the UK” (the “Ofcom Decision”). The Ofcom Decision concluded that Royal Mail unlawfully abused its dominant position in the market for bulk mail delivery services by attempting to introduce discriminatory prices via Contract Change Notices on 10 January 2014 (“the Infringement”). The Proposed Defendant is required by law to provide “bulk mail delivery services” and is overwhelmingly dominant on the relevant market, being the “bulk mail delivery services market”.
The PCR’s theory of harm is that as a result of the Infringement, the Proposed Defendant's competitor Whistl exited the market for bulk mail delivery services. As a result of Whistl’s exit, purchasers of bulk mail retail services (the proposed class members) paid higher prices than they otherwise would have paid. The stated objective of the proceedings is to seek redress for loss caused by the Infringement.
The proposed class are all persons who purchased bulk mail retail services between 10 January 2014 and the date of the claim form (29 May 2024). The proposed class is provisionally estimated to consist of 290,477 entities, and the value of the claim is provisionally estimated to be in the region of £1 billion.
The Tribunal held:
(1) that it is just and reasonable for the PCR to act as a representative in the Collective Proceedings (section 47B(8)(b) of the Competition Act 1998 and Rule 78 of the Competition Appeal Tribunal Rules 2015);
(2) that the claims raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings on an opt-out basis (section 47B(6) of the Competition Act 1998 and Rule 79 of the Competition Appeal Tribunal Rules 2015); and
(3) that the methodology proposed by the PCR to satisfy the Microsoft test is sufficiently credible and plausible at this stage of the proceedings not to present an obstacle to certification.
Accordingly, the PCR’s application for a CPO was granted.
