Reed Smith Client Alerts

Key takeaways

  • Companies or individuals can bring three types of private competition actions.
  • Regulatory bodies are in favour of private actions and have introduced legislation to support the procedure.
  • Despite the potential for a large sum of awarded damages, the costs of private enforcement can be significant and an important consideration for claimants.
  • Parties may find ways to protect confidential documents during proceedings.
  • In the UK and globally we are seeing changes to the types of private competition actions being brought, and it is an area that continues to evolve.

Auteurs: Marjorie C. Holmes Lucy M. Demetriou

What are private actions and how do they work?

Private antitrust actions refer to claims brought by companies or individuals that have suffered a loss due the infringement of the Chapter I or Chapter II prohibitions1 by another company or individual. Private competition enforcement covers three types of claims:

  • ‘Follow-on’ actions: these follow the decision of a regulator after a breach has been established and must be based upon the same infringements already determined by the regulator.
  • ‘Stand-alone’ actions: in 2015, the Consumer Rights Acts broadened the scope of the Competition and Appeals Tribunal (CAT) to hear these claims. This is where a claimant may attempt to obtain damages or an injunction in relation to an alleged infringement. This could be completely independent of any public enforcement or may operate in parallel or alongside an anticipated or ongoing investigation.
  • ‘Collective’ proceedings: often called ‘class actions’, these arise when a class representative brings a claim on behalf of a number of claimants, who may each choose whether or not to opt in. These claims may be either on a follow-on or stand-alone basis, and require the permission of the CAT to be heard.

Private competition actions are most commonly brought before the High Court or the CAT in the first instance. Follow-on and stand-alone actions may be heard before either the High Court or the CAT, but collective proceedings may only be heard before the CAT (once permission has been granted). Considerations such as the procedure, the complexity of the case and limitation periods are important when deciding where to bring a claim. For example, the CAT offers a ‘fast-track’ process and generally a more informal and commercial approach as the matter tends to be heard by a panel comprising a lawyer and two other members, each with expertise in the relevant industry, as opposed to a single judge in the High Court.