MOL (Europe Africa) Ltd & Ors. v Mark McLaren Class Representative Ltd

Certification of collective competition proceedings requires a methodology offering a realistic prospect of assessing loss on a class-wide basis. It need not be certain to succeed, but should provide an adaptable blueprint for trial.

The Competition Appeal Tribunal has a continuing, proactive gatekeeper role. Once opposing theories reveal a pivotal dispute, it should establish a suitable pathway for disclosure, evidence and trial rather than leave every question unresolved until trial.

Aggregate damages permit pragmatic, top-down estimation and do not fail merely because some class members may have suffered no individual loss. Whether benefits obtained elsewhere reduce an overcharge depends upon a sufficiently close causal connection and ordinarily requires findings of fact.

The European Commission found that maritime car carriers had infringed competition law by coordinating prices and allocating customers. A proposed class representative subsequently brought follow-on collective proceedings on behalf of consumers who had acquired affected vehicles. It alleged that carriage overcharges had passed through the distribution chain in delivery charges.

The Competition Appeal Tribunal granted a collective proceedings order and rejected strike-out and reverse summary judgment applications in [2022] CAT 10. The carriers challenged the adequacy of the proposed methodology. One group relied upon an alternative theory that consumers negotiated a single overall vehicle price; another attacked the assumptions underlying the separate-delivery-charge methodology.

The class representative disputed the Tribunal's treatment of causation and cross-appealed against the exclusion of representatives of consumers who had died before proceedings began. The central issues concerned certification, management of competing pricing theories, causation of benefits and post-limitation substitution.

1. Disposition. The attempt to strike out or dismiss the collective claim was refused, and the challenge to the separate-delivery-charge methodology was dismissed. The pricing dispute was remitted to the Competition Appeal Tribunal for further case management. The Tribunal's conclusions on causation at paragraphs [121]–[124] were set aside. The class representative's limitation cross-appeal was dismissed.
2. An aggregate damages claim under section 47C of the Competition Act 1998 is a radical departure from conventional bottom-up compensation. The Tribunal may use pragmatic techniques to estimate class-wide loss. The possible inclusion of persons who suffered no individual loss does not invalidate certification, provided that defendants do not overpay in the aggregate.
3. The competing theories of separate delivery pricing and overall vehicle pricing raised factual questions for trial. The fact that money is fungible did not compel use of an overall-price counterfactual. The evidence disclosed a plausible case that delivery charges formed a distinct pricing silo and that an overcharge passed through to consumers.
4. A certification methodology must offer a realistic prospect of assessing loss on a class-wide basis. It need not be bound to work, survive every evidential challenge or provide every answer before disclosure. The Tribunal was entitled to accept the proposed methodology as plausible and sufficiently grounded in industry evidence.
5. The Tribunal nevertheless misunderstood its continuing gatekeeper role. Certification is not the end of active case management. Once the opposing pricing theories emerged as the pivotal dispute, the Tribunal should have required sufficient particulars and established a pathway for disclosure, evidence, any necessary adaptation of the methodology and trial. Simply postponing the entire dispute until trial was an error of approach.
6. A benefit reduces damages only where it was caused by the wrong or by a successful act of mitigation, requiring a sufficiently close legal or proximate causal connection. Whether negotiations over the overall vehicle price had that connection with a covert delivery overcharge depended upon facts not yet found. The Tribunal therefore decided the causation issue prematurely.
7. Rule 38 of the Competition Appeal Tribunal Rules could not be used, after limitation expired, to add personal representatives of consumers who had died before the claim form was issued. Proceedings in a deceased person's name were a nullity and there was no original party whose claim could be continued. AIG Europe Ltd v McCormick Roofing Ltd [2020] EWHC 943 (TCC) was wrongly decided and was not followed.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 1701, the court refused to strike out or dismiss the collective claim, dismissed the challenge to the silo-pricing methodology, set aside part of the Tribunal's causation reasoning, remitted the pricing dispute for further case management, and dismissed the limitation cross-appeal.
2. Competition Appeal Tribunal: In [2022] CAT 10, the Tribunal made a collective proceedings order, rejected strike-out and reverse summary judgment applications, treated the competing pricing theories as matters for trial, and excluded representatives of persons who had died before proceedings commenced.