Third 'fast track' abuse of dominant position claim filed with Competition Appeal Tribunal

Out-Law News | 14 Apr 2016 | 10:20 am | 2 min. read

A third claim alleging anti-competitive behaviour using a new 'fast track' procedure has been filed with the Competition Appeal Tribunal (CAT), showing a "pattern" of such cases beginning to emerge, an expert has said.

Competition law expert Ben Lasserson of Pinsent Masons, the law firm behind Out-Law.com, said that use of the fast track had taken off "much more quickly than expected" following its introduction as part of the 2015 Consumer Rights Act (CRA 2015) on 1 October 2015. The previous two cases had settled quickly and this third case, brought by online training provider Socrates Training Ltd against the Law Society of England and Wales, was likely to do the same, he said.

"The debate surrounding the CRA 2015 reforms to private actions in competition law predominantly focused on the introduction of the collective actions regime, given the significance of that change," he said. "The 'fast track' procedure did not attract the same level of attention, yet this latest filing shows a pattern of fast track applications emerging."

"Interestingly, we are yet to see how this procedure will actually work in practice as each case has settled at an early stage. It is perhaps not surprising that the claims brought so far all involve an allegation of abuse of dominance. The reality is that companies understandably want to avoid the risk of a judicial finding of dominance, and will not want the added complication of having to fight an issue as complex as dominance in circumstances where the timetable is expedited and costs are capped. As a result, there is an obvious impetus towards early settlement. In its own way, therefore, the new procedure is arguably proving very effective for claimants as a means of challenging anti-competitive behaviour," he said.

The ability to allocate competition law proceedings to a 'fast track' procedure was one of several new powers given to the CAT by the CRA 2015. Claims allocated to the fast track must be heard within six months, and costs recoverable by the winning party will be capped at a level set by the CAT.

The CAT can allocate a case to the fast track either on its own initiative, or on the application of one of the parties. The procedure was designed primarily to benefit small and medium-sized businesses complaining of competition law infringements, but the CAT must also consider whether the case can be heard in three days or less and the complexity of the issues involved before deciding whether to allocate the case to the fast track.

According to the notice of claim filed by Socrates with the CAT, the training company has alleged that the Law Society of England and Wales has abused its dominant position in the market for certain training products by requiring law firms to purchase its own training modules, rather than those of third party providers, as a condition of its paid-for accreditation schemes. Socrates is seeking an injunction preventing the Law Society from continuing to abuse its dominant position as well as a declaration that it has done so, as well as damages and costs.

The first fast track claim was filed with the CAT at the end of December 2015 by National Compliance and Risk Qualifications (NCRQ), a health and safety training provider. It settled in January 2016, the day before an interim hearing was scheduled to take place by the CAT. A second fast track claim, brought as a challenge against land use restrictions benefiting a UK supermarket chain, settled last month.