Christopher Brown, Scott Campbell, Apr 16, 2013
In April 2012, the U.K. Government launched a consultation on possible reform of the U.K. regime for private redress in respect of breaches of competition law. The consultation, which could be seen both as a belated response by the Government to the recommendations on private redress made to it by the Office of Fair Trading in 2007 and as an outflanking of the European Commission’s White Paper on Damages Actions for Breach of the EC antitrust rules, was wide-ranging and included several radical proposals designed to facilitate redress for victims of anticompetitive conduct-most notably, the introduction of an “opt-out” collective actions mechanism. It is fair to say that this proposal was the one that generated the most fevered reaction among respondents. While the majority of respondents agreed with the Government’s assessment that the current system of collective redress had failed, there were sharp divisions as to what steps should be taken to cure the problem.
In January 2013, the U.K. Government issued its response to the consultation. It is therefore possible to discern the concrete proposals that ought to make their way into draft legislation to be tabled during the present Parliament. Notably, the Government maintains the view that an opt-out mechanism should be introduced.
This article considers the Government’s proposals on collective actions. It starts with a short précis of the current position, before providing an overview of the Government’s proposed reform. It then addresses two particular issues which, it is submitted, will be critical to the success or failure of the reform: first, the proposed certification rules; and second, the funding of such actions.