UK Trucks Claim Limited v Stellantis NV (formerly Fiat Chrysler Automobiles NV) & Ors

A material and actual conflict between members of a proposed collective class must be addressed when the proceedings are certified. A class representative may not prefer one identifiable group’s interests to another’s detriment on a major issue.

A corporate representative may nevertheless represent both sub-classes if effective separate representation, a Chinese wall, separate experts and appropriate independent funding eliminate the conflict. The Competition Appeal Tribunal retains broad discretion when choosing between eligible opt-in and opt-out collective proceedings. There is no presumption favouring either form, and an appellate court should not interfere with a multifactorial certification assessment absent an error of law.

The Road Haulage Association Ltd and UK Trucks Claim Ltd each sought a collective proceedings order for follow-on damages arising from the European Commission’s Trucks decision. The RHA proposed opt-in proceedings for purchasers of new and used trucks, with individual damages. UKTC proposed opt-out proceedings for purchasers of new trucks, with aggregate damages.

The Competition Appeal Tribunal, in [2022] CAT 25, found both applications eligible but preferred the RHA’s application. It considered that a notice and later case management could address the conflicting interests of new-truck purchasers, who would seek to minimise resale pass-on, and used-truck purchasers, who would seek to establish it.

The central issue was whether that actual conflict prevented a single representative from acting fairly and adequately for both groups, or could instead be managed through protective arrangements.

1. The appeals by MAN and DAF, and UKTC’s first and second grounds, were dismissed. The court held that the actual conflict concerning resale pass-on did not require two overlapping collective proceedings or two overall class representatives.

2. The CAT had, however, erred in treating the conflict as merely potential, in deferring identification of the new- and used-truck sub-classes, and in suggesting that a notice accepting Dr Davis’s advice could resolve it. The conflict had already arisen from the RHA’s pleading and expert evidence. Economic analysis involved contestable assumptions, data selection and litigation strategy. A single expert could not neutrally act for both sides of that issue.

3. The RHA could remain the overall representative only if it established a Chinese wall and separate teams for the two sub-classes on resale pass-on. The teams required separate solicitors, counsel and experts. One sub-class also required a different funder, so that funding did not improperly affect independent litigation or settlement decisions. These arrangements had to be in place before class members opted in.

4. Although a representative may sometimes adopt a course favouring the majority on minor matters, it may not prejudice an identifiable minority on a major issue. The court distinguished the position of an individual fiduciary from that of a sufficiently resourced corporate representative capable of erecting effective internal safeguards.

5. The CAT’s preference for the RHA’s opt-in claim was a discretionary, multifactorial assessment. There was no presumption in favour of opt-in or opt-out proceedings. The court refused UKTC permission to appeal its challenge to that assessment and dismissed Daimler’s challenges to UKTC’s proposed methodology. The Microsoft test imposes a low threshold at certification and does not require a proposed representative to anticipate every possible defence.

6. The case was remitted to the CAT to direct and approve the conflict safeguards and the Rule 81 notice. UKTC’s application was stayed pending resolution of those matters and the funding position.

• Court of Appeal (Civil Division): Dismissed the substantive appeals, identified errors in the CAT’s proposed handling of the intra-class conflict, and remitted the matter for directions concerning separate representation, funding and the Rule 81 notice: [2023] EWCA Civ 875.
• Competition Appeal Tribunal: Granted a collective proceedings order to the Road Haulage Association Ltd, preferred its opt-in proceedings to UKTC’s opt-out application, and dismissed UKTC’s application: [2022] CAT 25.