August 11, 2022

UK Competition Appeal Tribunal certifies opt-out class in railway ticket case

On July 25, 2022, the Competition Appeal Tribunal granted a collective proceedings order (“CPO”) in respect of a proposed opt-out collective action against Govia Thameslink Railway Limited, the Go-Ahead Group PLC, and Keolis (UK) Limited.

In granting the CPO, as is usual, the Tribunal did not address the merits of the case, in which the proposed class representatives alleged that the railway operators abused a dominant position in breach of Chapter II of the Competition Act 1998, by issuing branded fares that allowed travel on a single train service at lower rates than fares issued for multiple services (“single-brand” versus “multi-brand” tickets).

In considering whether to grant the CPO, the Tribunal considered primarily the eligibility conditions such as whether the class is identifiable, shares common issues, and whether the claim is appropriately brought as a collective proceeding.  Without addressing the merits of the claim, the Tribunal satisfied itself of the soundness of the proposed methodology for establishing loss and damage for the class, and found that all required elements for eligibility as a collective proceeding were satisfied.

The Tribunal also considered authorization conditions such as the appropriateness of the named plaintiffs to act as class representatives, the extent to which the proposed class representatives have a plan for taking the proceedings forward, whether a maximum amount should be set for remuneration of the class representatives, and whether the class representatives would be able to pay the respondents’ costs, should they be ordered to do so.  As regards the question of whether two joint class representatives should be appointed, the Tribunal concluded that, although there is no bar to the appointment of joint class representatives, in this case the qualifications of one of the proposed representatives were superior to those of the second, who was not appointed, in part as a consequence of some intemperate tweeting about the case.