Concurrences and Skadden, Arps, Slate, Meagher & Flom hosted an informal dinner and discussion with Sir Marcus Smith QC, a Justice of the High Court and a Chairman of the Competition Appeal Tribunal. His remarks were made in a strictly personal capacity.
The discussion with Sir Marcus, led by Bill Batchelor and Ingrid Vandenborre, partners at Skadden, touched current challenges and opportunities in U.K. competition law litigation: where to set the bar when seeking a collective proceedings order; the intersection of law and expert economic evidence (discussed at length in BritNed Development Ltd v. ABB AB in the High Court (November 2018) and the Court of Appeal (October 2019)); the standard for judicial review in competition cases; and the potential impact of Brexit on the development of UK competition law enforcement.
When discussing the different conclusions on collective action certification between the Competition Appeal Tribunal and Court of Appeal in Merricks, the speakers stressed the importance of the certification decision to the course of the litigation. Was it right to treat certification like other interlocutory motions (asking whether there is a realistic prospect of success) or does the pressure-to-settle occasioned by certification mean some higher hurdle should apply? Another question soon to come before the Tribunal will be competing applications to be certified as the opt-out class. This may require a relative qualitative assessment the proposed collective actions, perhaps involving a range of factors such as class definition, funding and distribution proposals.