Nippon Yusen Kabushiki Kaisha & Ors v Mark McLaren Class Representative Limited

Collective proceedings rules do not, by necessary implication, prohibit defendants or their lawyers from communicating directly with class members about the proceedings. A blanket restriction cannot be derived from provisions requiring notices through class representatives or regulating settlements. The Competition Appeal Tribunal may impose communication limits through case management, but any restriction should be tailored to the case, the class and the identified risks. The appeal route is not confined to end-of-the-road decisions. A CAT decision is appealable where it has a real and material potential to affect how a damages claim is conducted and therefore its quantum. The relevant question concerns whether the decision, rather than merely the point of law, is as to damages.

MMCR brought collective proceedings in the Competition Appeal Tribunal on behalf of a large class of vehicle purchasers against shipping companies. Before the opt-out deadline, solicitors for several defendants sent letters to 21 potential class members concerning possible disclosure obligations.

The CAT, in [2022] CAT 53, interpreted the Competition Appeal Tribunal Rules 2015 as prohibiting direct communications with class members about the proceedings without permission and made a corresponding order. The defendants initially challenged that decision by judicial review. The Court of Appeal considered whether the correct route was an appeal under section 49(1A)(a) of the Competition Act 1998, whether the Rules imposed the restriction, and whether the order could alternatively be justified as case management.

1. Appeal route. Popplewell LJ, with Butcher J agreeing, held that the challenge was properly brought by appeal. Under section 49(1A)(a) of the Competition Act 1998, the requirement that the decision be as to damages attaches to the Tribunal decision or order, not to the point of law relied on as a ground of challenge. Following the broad approach in [2023] EWCA Civ 876, the appeal route includes interlocutory decisions having a real and material potential to affect the conduct or quantum of a damages claim. It is not confined to end-of-the-road decisions. Decisions concerned merely with timing, or with no sufficiently real causal connection to damages, remain outside the route.
2. Construction of the Rules. Applying the principles in [2022] UKSC 3 and the other authorities on necessary implication, silence in a statutory instrument can be supplemented only where the implication is necessary and compellingly clear. The Competition Appeal Tribunal Rules 2015 contain no express prohibition on direct communications by defendants or their representatives with class members. The provisions concerning notices, class representatives and collective settlements are specific and do not support a wider implied prohibition. Rule 94 is inconsistent with a blanket restriction applying to all proceedings and from the filing of the claim form.
3. Practical and procedural consequences. The proposed restriction could interfere with litigation privilege by requiring disclosure of defence evidence-gathering strategy. It could also impair expert selection, commercial confidentiality and ordinary business operations. The absence of a general prohibition in other collective procedures and in Canadian class proceedings supported the conclusion that no such implication was necessary.
4. Case management and Article 10. The CAT retains extensive powers to impose tailored restrictions where the circumstances require them. The court expressed no concluded view on the Article 10 proportionality issue. The CAT had not made the order on an alternative case-management basis: its ruling treated that issue as a postscript and did not give the necessary reasoning or invite full argument. Any fresh application should therefore be made to the CAT, which is better placed to assess the evidential and procedural context.

The court treated the challenge as an appeal, granted permission and allowed the appeal.

• Court of Appeal (Civil Division) — [2023] EWCA Civ 1471 . The court treated the challenge as an appeal, granted permission to appeal and allowed the appeal.
• Competition Appeal Tribunal — [2022] CAT 53. The Tribunal held that the Rules prohibited communications by defendants with class members about the collective proceedings without permission and made the challenged order.