The Competition Appeal Tribunal recently issued a judgment in the Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others damages case. On July 12, 2024, the Tribunal unanimously ruled to deny a request by the Class Representative (“CR”) for permission to pay a portion of the relevant costs, fees and disbursements (“the Related Costs Application” or “RCA”) owed to third party case funders from the proceeds of a settlement reached with one of the twelve defendants in the case, prior to the distribution of proceeds to class members and before proceedings had concluded against the remaining defendants. In 2023, the CR and “the Twelfth Defendant” reached a £1.5 million settlement, including £1.2 million in damages, £280,000 for Proceedings Costs Sum (costs for proceedings against the settling defendant), and £100,000 to cover settlement application costs. While the settlement was approved by the Tribunal in 2023, the payment of RCA was not part of that settlement application.
After engaging in a thorough analysis of the CAT Rules, the Tribunal confirmed that it does have jurisdiction to order the payment of certain RCA expenses. In particular, the Tribunal determined that CAT Rule 53(2)(n) grants the CAT general case management powers to “approve payments to funders outside the context of damages awards.” However, the Tribunal emphasized that these issues should be determined on a case-by-case basis while being mindful of the need for case funders in collective proceedings and the importance of their economic viability in the funding market. In the current case, the Tribunal decided that it was not appropriate under the circumstances to issue such an order before the final outcome of proceedings and the level of recovery is known. The Tribunal determined that the need in this case was not pressing because the sums requested were relatively small compared to the total amount of damages sought in the case and the “considerably larger expenses” that that funders were expected to pay in proceedings against the remaining Defendants. The Tribunal reasoned that a relatively small payment at this stage would do “little to reduce the funder’s exposure and duration risk” considering that the trial is scheduled to commence in January 2025, and a final outcome is expected in the “not too distant future.” However, the Tribunal indicated that it was prepared to apply an additional £71,000 from the Proceedings Costs Sum that would be handled in the same way as the £100,000 in costs related to the settlement application.
This proceeding is related to the Maritime Car Carriers case (AT.40009) in which several shipping companies admitted, as part of a 2018 settlement with the European Commission, that they breached EU competition law by acting as a cartel, between 2006 and 2015, with regards to certain shipping charges imposed for new motor vehicles shipped to and from the European Economic Area, which at the time included the UK.
CAT Case Summary | CAT Judgment Summary | Judgment (Related Cost Application)