“A. While it may have been introduced earlier, Pride started to communicate the existence of the Below-RRP Online Price Advertising Prohibition to Retailers by28 January 2010 . B. The Retailers agreed to abide by, or acquiesced in, Pride’s requests and/or instructions not to advertise prices below the RRP online, although not all Retailers complied with Pride’s requests and/or instructions at all times. C. To comply with the Below-RRP Online Price Advertising Prohibition, a Retailer could, if it did not wish to advertise the product at RRP, use the phrase ‘call for best price’, ‘value special’ or similar on its website(s). A Retailer could also comply with the Below-RRP Online Price Advertising Prohibition by not displaying any price or any such phrase on its website(s). D. From25 June 2010 at the latest Pride had in place a system of monitoring whether its retailers were complying with its Below-RRP Online Price Advertising Prohibition (those retailers that were not, at times, complying with Pride’s policy were referred to internally as ‘internet rogues’). E. Those Retailers which were identified as ‘internet rogues’ were contacted by members of the external sales team and/or their respective Area Sales Manager and requested and/or instructed to: (i) remove the below-RRP price from the Retailer’s website; and/or (ii) increase the online price advertising to the RRP…”
“Whilst Pride’s policies concerning the online advertising of prices below the RRP in respect of certain mobility scooters applied to its dealer network generally, the OFT’s finding, based on the evidence in its possession, is that the Retailers were party to agreements and/or concerted practices with Pride in respect of the Below-RRP Online Price Advertising Prohibition. The OFT has identified the Retailers from the generality of Pride’s dealer network on the basis of the strength of the evidence in its possession. While the OFT makes no findings in respect of other members of Pride’s dealer network, no inference should be drawn from any part of this Decision that the Retailers constitute the only dealers to whom the Below-RRP Online Price Advertising Prohibition related. Likewise, this Decision should not be understood as excluding the possibility that the Below-RRP Online Price Advertising Prohibition resulted in further agreements and/or concerted practices between Pride and other members of its dealer network.”
“The OFT considers that Pride’s strategy in relation to implementing the Below-RRP Online Price Advertising Prohibition was intended to apply to the whole dealer network and was widespread, going well beyond the Retailers named in this Decision: (i) The overall strategy could only have worked if the majority of retailers adhered to it. As described at paragraphs 3.26 to 3.30 above, Pride monitored its retailers’ websites to assess which were advertising certain of its Pride-branded scooters below-RRP online. A Pride employee regularly prepared a list of non-compliant websites (referred to as ‘internet rogues’). When asked for advice by a Pride Internal Sales Team Member [name redacted] on how to deal with specific ‘internet rogues’, Pride’s Managing Director [name redacted] responded that ‘ if a Dealer continues to advertise below RRP then there [sic] price structure will change to the T List, just make sure that the relevant sales guy is informed prior to any change, one rule for all ’ [emphasis added]. (ii) The Below-RRP Online Price Advertising Prohibition had the potential to encompass all dealers within Pride’s network and indeed Pride’s monitoring and enforcement of the Below-RRP Online Price Advertising Prohibition extended far wider than the Retailers addressed by this Decision. Moreover, there is no evidence in the OFT’s possession to suggest that certain retailers were exempt from the application of, or from Pride’s monitoring and enforcement of, the Below-RRP Online Price Advertising Prohibition. The Rogue Reports in the OFT’s possession do not only cover the eight Retailers addressed by this Decision. To take one illustrative example from June 2011, a Rogue Report lists 27 retailers actively being monitored through the Rogue Reports for compliance with the Below-RRP Online Price Advertising Prohibition at this time. (iii) Furthermore, retailers were themselves monitoring the Below-RRP Online Price Advertising Prohibition. In some cases, these retailers contacted Pride to let them know about their competitors’ advertising activities and request that Pride enforce the Below-RRP Online Price Advertising Prohibition against the competitors.…”
“3.199 The advertising of price information allows consumers to compare the various offers available in the market and to determine which retailer offers the best price. Where retailers are able to signal to consumers (through advertising) that their prices are lower than those of their competitors, they can win the custom of consumers who would otherwise have made a purchase from a higher-priced competitor. The prospect of increased sales, and the threat of price competition by rival retailers, will incentivise retailers to lower their prices, thereby promoting price competition in the sector. Such price competition in the supply of products serves as an incentive for retailers to act efficiently and ensures that lower prices are passed on to consumers. 3.200 Retailers who have the freedom to advertise their actual selling prices on the internet are better able to attract and win (a) customers who make use of the internet to compare product offerings and prices, and (b) customers who are located in more distant territories than those within which the retailer’s bricks-and-mortar store(s) is/are easily accessible by its potential customers. As regards the latter, customers who are located in territories beyond the retailers’ bricks-and-mortar catchment areas are less likely to be able to access or act on price information contained in in-store or ‘shop-window’ displays or in local print or broadcast advertising. By prohibiting retailers from online advertising of below-RRP prices, retailers who would otherwise advertise at a lower price are unable (or at least significantly less able) to signal to consumers that they are offering better value. Therefore, such a prohibition prevents customers from easily shopping around for lower-priced retailers (for example, through the use of ‘Google shopping’). 3.201 The Below-RRP Online Price Advertising Prohibition hampers Retailers in using the internet as a method of marketing. Where a Retailer adopts a selling price that is below-RRP, it cannot display this price information online; it can only inform consumers as to how they might obtain this price information (e.g. instructing consumers to ‘call for best price’). For consumers, this makes shopping around and price comparison more difficult, and search costs are increased given the need to make a number of phone calls to retailers. For retailers, ‘call for best price’ instructions are likely to be far less effective in attracting interest from customers who are located in territories beyond the retailers’ bricks-and-mortar catchment areas, or from internet customers more generally, than the displaying of actual selling prices online. 3.202 The OFT concludes that, by reducing price transparency between Retailers, and by limiting the geographic and demographic reach of Retailers’ price signalling, the Below-RRP Online Price Advertising Prohibition is likely significantly to eliminate incentives on the part of retailers to engage in price competition with other retailers selling, whether online or otherwise, certain Pride mobility scooters and is thereby liable to lead to consumers paying higher prices. Therefore, the OFT concludes that the Below-RRP Online Price Advertising Prohibition is liable to prevent, restrict or distort competition between retailers.”
“Pride shall within 20 working days from the date of this Decision write to each of the Retailers listed in paragraph 1.9 of this Decision and any other retailers in respect of which it operates a Below-RRP Online Price Advertising Prohibition in relation to mobility scooters , to inform them that it no longer operates such a prohibition.”
“Breaches of competition law, such as price-fixing, often involve very large numbers of people each losing a small amount, meaning it is not cost-effective for any individual to bring a case to court. Allowing actions to be brought collectively would overcome this problem, allowing consumers and businesses to get back the money that is rightfully theirs – as well as acting as a further deterrent to anyone thinking of breaking the law.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties .”
“a novel statutory or ‘quasi-tortious’ liability towards the Welsh Ministers on compensators… This liability is a liability for pure economic loss which does not exist and has never existed at common law.”
“a new contractual liability … on any insurer whose policy would to any extent cover the compensator for any liability which the compensator has or would (if established) have towards the victim …. irrespective of any policy exclusion or restriction…. The Bill thus imposes new liabilities on compensators in respect of past conduct and on liability insurers under past insurance contracts.”
“In my opinion, … A1P1 is engaged as regards both compensators and their liability insurers. Both are affected and potentially deprived of their possessions, in that the Bill alters their otherwise existing legal liabilities and imposes on them potentially increased financial burdens arising from events long-past and policies made long ago.”
“Moreover it imposes liabilities on both not only in conjunction with existing liabilities, but in addition to them. It does so in the case of compensators by making it irrelevant whether the compensation reflects any actual or admitted liability. It does so in the case of insurers by making them liable in circumstances where the insurance cover which they granted would not apply. For all these reasons, both compensators and insurers are in my opinion entitled to be regarded as victims for the purposes of A1P1.”
“Although the charges which can be recovered are only those that are incurred after the coming into force of the Bill and the liability to pay Ministers arises only where a compensation payment is made after the coming into force of the Bill, there is an element of retrospectivity in the imposition of the machinery of direct liability on employers. The liability imposed, though only in respect of future charges, is retrospective, as it is a new liability owed directly to Welsh Ministers which arises only by reason of negligence or breach of statutory duty which had occurred prior to the coming into force of the Bill. It is not simply an obligation to make future payments to an employee in respect of a recognised head of damages for an established liability, as would be the case if the machinery adopted had been to impose charges directly on the employees and recovery been obtained [by them] from employers. In the case of the employers, prior to the Bill, they would have had no such direct liability to Welsh Ministers. Thus the second aim and effect of the Bill has an element of retrospectivity.”
“[these provisions] have the effect of extending the liability under the employers’ liability insurance policy to an extent greater than the liability would have been if any charges payable to the Welsh NHS had been paid as damages by the employer to the employee. In my view, the provisions would override deductibles and policy limits, as the effect of the provision as drafted is to extend the policy to indemnify the employer for all liability under [the provision imposing liability on employers], if the policy provides cover to any extent. … In whatever way [the provision] is drafted, …[it] would retrospectively amend any policy which the employer has to indemnify the employer against his liability for asbestos-related disease by extending it to provide indemnity for payments made to Ministers for charges payable to the Welsh NHS. The imposition of such liabilities retrospectively, in my view, could be seen as the “deprivation” of the “possessions” of insurers, so as to engage A1P1.”
“If the legislation were to be interpreted and applied so as to permit the Applicant to bring an opt-out action against Pride, this would enable the Applicant to (subject to satisfying the statutory requirements for the grant of a CPO) bring claims for monetary compensation against Pride on behalf of the Proposed Class – something that she would not have been able to do before the amended version of section 47B came into force on1 October 2015 .”
“Subject to the provisions of this Act and Tribunal rules, proceedings may be brought before the Tribunal combining two or more claims to which section 47A applies (“collective proceedings”).”
“… collective proceedings are a form of procedure and do not establish a new cause of action.”
“The interference with the insurers’ possessions can therefore be seen to be within the area of risk with which they engaged when they undertook to indemnify the consequences of the employer’s negligence.”
“The concept of the margin of appreciation reflects a recognition on the part of the Strasbourg court that in certain circumstances, and to a certain extent, national authorities are better placed than an international court to determine the outcome of the process of balancing individual and community interests. At the domestic level, the courts also recognise that, in certain circumstances, and to a certain extent, other public authorities are better placed to determine how those interests should be balanced. Although the courts must decide whether, in their judgment, the requirement of proportionality is satisfied, there is at the same time nothing in the Convention, or in the domestic legislation giving effect to Convention rights, which requires the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion. As Lord Bingham of Cornhill observed in Brown v Stott[2003] 1 AC 681 , 703: “Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment according to those bodies.”
“Section 47B of the Competition Act 1998 (as substituted by sub-paragraph (1)) applies to claims arising before the commencement of this paragraph as it applies to claims arising after that time.”
“ 3 Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
“…Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. It other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, ‘go with the grain of the legislation’.”
“… however powerful the obligation in sect 3(1) may be, it does not allow the courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen. And, of course, in considering what constitutes the substance of the provision or provisions under consideration, it is necessary to have regard to their place in the overall scheme of the legislation as enacted by Parliament.”
“…If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.”
“ 6 Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
“ Certification of the claims as eligible for inclusion in collective proceedings 79 .—(1) The Tribunal may certify claims as eligible for inclusion in collective proceedings where, having regard to all the circumstances, it is satisfied by the proposed class representative that the claims sought to be included in the collective proceedings— (a) are brought on behalf of an identifiable class of persons; (b) raise common issues; and (c) are suitable to be brought in collective proceedings. (2) In determining whether the claims are suitable to be brought in collective proceedings for the purposes of paragraph (1)(c), the Tribunal shall take into account all matters it thinks fit, including— (a) whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues; (b) the costs and the benefits of continuing the collective proceedings; (c) whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class; (d) the size and the nature of the class; (e) whether it is possible to determine in respect of any person whether that person is or is not a member of the class; (f) whether the claims are suitable for an aggregate award of damages; and (g) the availability of alternative dispute resolution and any other means of resolving the dispute, including the availability of redress through voluntary schemes whether approved by the CMA under section 49C of the 1998 Act or otherwise. (3) In determining whether collective proceedings should be opt-in or opt-out proceedings, the Tribunal may take into account all matters it thinks fit, including the following matters additional to those set out in paragraph (2)— (a) the strength of the claims; and (b) whether it is practicable for the proceedings to be brought as opt-in collective proceedings, having regard to all the circumstances, including the estimated amount of damages that individual class members may recover.”
“… in the light of sects 4(6)(a) and 6(2) of the HRA it would be wrong in principle to use that discretion for the purpose of undermining the effect of the 2013 Act.”
“60 Principles to be applied in determining questions. (1) The purpose of this section is to ensure that so far as is possible (having regard to any relevant differences between the provisions concerned), questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of corresponding questions arising in Community law in relation to competition within the Community. (2) At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between— (a) the principles applied, and decision reached, by the court in determining that question; and (b) the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in Community law…”
“… the Court has consistently held …. that, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. That case-law also applies where the retroactivity is not expressly laid down by the measure itself but is the result of its content.”
“It must also be recognized that by retroactively subjecting the payment of aid to the forwarding of the contracts by31 July 1980 the Commission acted in breach of the legitimate expectations of the persons concerned, who, having regard to the provisions in force at the time the contracts were concluded, could not reasonably have anticipated the retroactive imposition of a time-limit for forwarding the contracts which coincided with the time-limit for their conclusion.”
“If Pride had thought, at that time, that legislation permitting opt-out actions would come into force in October 2015 allowing actions in respect of damage said to have been caused between 2010 and 2012, then its internal deliberations as to the ‘costs vs. potential benefits’ of appealing against the OFT Decision would have been very different.”
“any person who purchased a Pride mobility scooter other than in the course of a business in the UK between1 February 2010 and29 February 2012 ”
“a. At least some internet sales are likely to have been at the price actually advertised by infringing retailers on the internet. Some online sales of scooters directly affected by the Infringements will therefore have been at the RRP whereas, absent the Infringements, they would have been at lower prices. b. In the absence of the Infringements, Pride would have needed to adopt a commercial strategy which did not involve the Below-RRP Online Price Advertising Prohibition. It would not, therefore, have been able (in the counterfactual) to maintain online prices at the RRP. c. Internet prices also affect offline prices. The internet is particularly important in intensifying competition between retailers. Information available on the internet enables consumers to shop around, and it also provides retailers with an additional channel through which to compete for customers. These factors are of particular importance in the context of mobility-restricted customers (Decision, paras 1.13-1.15). d. Shops will generally not know whether a customer will look at prices online before making a purchasing decision. The price offered to customers who do not check prices online is therefore likely to be affected by the existence of customers who do. e. Higher online prices also act as an ‘anchor’ for higher offline prices. f. Furthermore, mobility scooters of different models sold through different channels are all substitutes. An increase in the price of one model can cause consumers to switch to another model, causing the price of that other model to increase. That is the ‘umbrella effect.’ The Applicant will contend that the effect of the Below-RRP Online Price Advertising Prohibition was to increase the price not only of the directly affected models, but also of other Pride models to which consumers switched.”
“call for best price.”
“any such loss was confined to only a small number of consumers, representing only a very small proportion (probably less than 1 percent) of the members of the Proposed Class. Those consumers would be a sub‑set of those who (i) bought a scooter of a Relevant Model during the Relevant Supra‑Period from a Relevant Retailer, and (ii) did so after seeing that model on a Relevant Retailer’s website during its Relevant Period, in circumstances where the webpage did not show a specific below‑RRP price for that model, and (iii) did not see that model being advertised on any website of any retailer that was advertising the scooter at a specific below‑RRP price (i.e. a retailer that was, to use the term employed by Pride at the time, an “internet rogue”), and (iv) did not see, in relation to that model, in any other advertising (e.g. print, in‑Showroom, direct mailshot, etc.) indicating a price for that model which was at the level of the prices being advertised for that model by the “internet rogues” (the “ Internet Rogue Advertised Price”), and (v) bought the scooter at a price that was higher than the Internet Rogue Advertised Price.”
“Modern class certification proceedings routinely involve long evidentiary proceedings preceded by massive discovery efforts, expert economists, and Daubert motion practice. Filing an antitrust case as a class action and properly following through with a motion with any reasonable chance of success should be expected to be a multi-year, multi-million dollar proposition.”
“[t]he loss-related common issues, that is to say the proposed common issues that ask whether loss to the class members can be established on a class-wide basis, require the use of expert evidence in order for commonality to be established.”
“In my view, the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement. This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis so that, if the overcharge is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to the class (i.e. that passing on has occurred). The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case is question. There must be some evidence of the availability of the data to which the methodology is to be applied.”
“That is a comprehensible regime because the regulator may make findings which are directly relevant to a decision as to infringement, but it may also make findings of much less direct relevance. Findings in the former category should be regarded as binding, because to challenge them would be tantamount to challenging the finding of infringement. However, if the finding is peripheral or incidental, on the one hand to question it may not involve subverting the infringement finding and on the other it may be fair and sensible because the undertaking may not have been concerned, for the purposes of the regulatory proceedings, to contest such a point, whereas if the finding is relied on in proceedings for damages it may have a much greater importance.”
“In determining whether it is just and reasonable for the applicant to act as a class representative in the collective proceedings, the Tribunal shall consider whether that person - (a) would fairly and adequately act in the interests of the class members; (b) does not have, in relation to the common issues for the class members, a material interest that is in conflict with the interests of class members; … (d) will be able to pay the defendant’s recoverable costs if ordered to do so; […].”
“In determining whether the proposed class representative would act fairly and adequately in the interests of the class members for the purposes of paragraph (2)(a), the Tribunal shall take into account all the circumstances, including— (a) whether the proposed class representative is a member of the class, and if so, its suitability to manage the proceedings; (b) if the proposed class representative is not a member of the class, whether it is a pre-existing body and the nature and functions of that body; (c) whether the proposed class representative has prepared a plan for the collective proceedings that satisfactorily includes— (i) a method for bringing the proceedings on behalf of represented persons and for notifying represented persons of the progress of the proceedings; and (ii) a procedure for governance and consultation which takes into account the size and nature of the class; and (iii) any estimate of and details of arrangements as to costs, fees or disbursements which the Tribunal orders that the proposed class representative shall provide.”
“The NPC has been made aware of vulnerable people, a large number of whom are elderly, being taken advantage of. The NPC has been given an opportunity to do something about it. It is right for us to help and address these wrongs if we can. People often use mobility scooters because they are frail or living with a disability… If they were overcharged then that is wrong and should be put right. I want to lend my voice to those people and stand up for them. It is pretty plain that unless we or some other organisations acts, Pride will provide them with no redress.”
“…Recognising the inevitable complexity of collective proceedings, the Tribunal is also likely to consider the suitability of the proposed class representative’s lawyers. The proposed class representative would usually be expected to have the ability to provide proper instructions to its lawyers and be capable of exerting sufficient control over the legal work conducted and costs incurred. Indeed, the Tribunal may require the proposed class representative to demonstrate at least a basic understanding of the facts relevant to the claim, and the nature of the claims themselves, so as to satisfy the Tribunal that it is capable of instructing its lawyers.”