Reported Cases Snapshot

A snapshot of reported cases before the Court of Session suggests that there has been very little competition litigation before the Scottish Courts (see table over page). It also confirms the concerns expressed in the BIS Consultation on Private Actions that redress is not readily available to SMEs or to consumers.

While it is fair to say that the reported judgments do not show the complete picture, and even if you consider the few instances in which the CAT has sat as a tribunal in Scotland , Scotland is clearly not a major venue for competition actions.

The snapshot does however highlight a number of fairly common features of competition law cases that are relevant to the discussion around the proposed BIS reforms, namely:
 

Cartel damages claims aside, this points to the importance of a specialist tribunal with broad jurisdiction. On that, the BIS proposals to amend the Competition Act 1998 (CA98) to allow the CAT to hear "stand-alone" as well as "follow-on" actions seem entirely sensible.

The snapshot does perhaps raise a few questions around the proposed "fast track" for SMEs. Take the example of the entrepreneurial farmer. Would the advice to him be to take a similar stand to the one the Jamieson family business took against Calor Gas? How would the fast track have assisted him? Would he have been able to seek some form of declaratory judgment: that his father's outdoor advertising contract was void and unenforceable in breach of the CA98? Otherwise would he simply have taken advantage of the higher-price offer from the rival company and defended his position relying on the CA98, using competition law as his "shield". The concern would be that a fast track and direct access to the CAT may work for those SMEs looking to use competition law as their "sword", but may be less attractive to those looking to use it as their "shield".

Turning to cartel damages claims, the snapshot is perhaps less relevant (though we are aware of at least one action that has been brought but which was subsequently dismissed after the OFT dropped its investigation). The proposals also consider introducing a statutory rebuttable presumption of loss in cartel cases (20%) and some form of statutory rule on the passing-on defence, though it seems unlikely that these proposals will be developed much further until such time as the EU has developed a "common" policy on collective redress.

That leaves the other main reform, the introduction of an "opt-out" collective actions regime. There are now a number of such systems in other EU and Commonwealth countries. The UK Government's preference is for an opt-out regime that allows private bodies, whether they be representative bodies or third party funders or law firms, to apply to the CAT for approval (certification) to bring claims on behalf of consumers and/or businesses. In addition to the prior certification of claims, features of the preferred regime, the majority of which could be implemented via amendments to the CAT's Rules of Procedure, include:

A snapshot of reported competition law cases in Scotland can be viewed here.