“26. The Applicant refers to a ‘mystery shopper’ survey that he commissioned from the consumer research consultancy Decidedly (now Yonder) that was conducted in December 2018 whereby a team of researchers made over 400 enquiries at ticket counters during different operating hours at a selection of stations served by First MTR, and similarly at a selection of stations served by LSER, and explored other available sales channels including the Respondents’ and third party websites, mobile phone apps and telephone-based services. The Decidedly survey report found that: (1) at the TOC ticket counters, where a Travelcard was not initially mentioned, for First MTR 89.4% of enquiries and for LSER 83.5% of enquiries led to the clerk quoting a full journey price without asking about ownership of a Travelcard; and that where a Travelcard/Boundary Fare was mentioned by the customer, for First MTR in only 71.7% of cases and for LSER in only 58.2% of cases was the Travelcard incorporated into the ticket price quoted. (2) at the First MTR in-station TVMs, although Boundary Fares are available, the purchase option was complicated and the ‘mystery shoppers’ were not always able to locate it without assistance. As noted above, Boundary Fares are not available from LSER’s TVMs; (3) Boundary Fares were not available through any of the surveyed online sales outlets (including mobile phone apps) whether operated by First MTR, LSER or third parties, including Trainline.com; (4) of the selected third-party telephone-based sellers (Trainline and TrainGenius), there was low staff awareness of Boundary Fares and in the case of TrainGenius they were not able to sell them.”
“By failing to make Boundary Fares sufficiently available for sale and/or failing to use their best endeavours to ensure that there was a general awareness among their customers of the existence of Boundary Fares so as to enable customers to buy an appropriate fare in order to avoid being charged twice for part of a journey the Defendants abused their position of dominance on the relevant market in breach of the prohibition in section 18 of the Act…”
“As an undertaking in a dominant position the defendants have a responsibility to ensure inter alia that their customers are not subjected to unfair prices or unfair trading conditions. This includes a responsibility to avoid, or to remedy, circumstances which effectively compel customers to pay a second time for part of the service provided to them in respect of which they already hold a valid ticket (a Travelcard); in particular given that the First Defendant received a share of the revenue from the sale of Travelcards under an agreement with TfL. Furthermore, the Infringement occurred against a backdrop where the Defendants must have been well aware, from data readily available to them, but only an unrealistically low number of Boundary Fares were being sold for travel on their services.”
“(2) The Tribunal may make an award of damages in collective proceedings without undertaking an assessment of the amount of damages recoverable in respect of the claim of each represented person.”
“45. A critical issue in deciding whether the proposed methodology is a suitable and effective means of calculating loss to the class is to determine whether it is necessary to prove at trial that each member of the proposed class has in fact suffered some loss due to the alleged infringement. Although the expert evidence must obviously provide a means of calculating the level of pass-on of the MIFs from merchants to consumers via price, there is some controversy as to whether that is sufficient to make the global loss suffered by consumers a common issue absent being able to show that each member of the class was in some way adversely affected in their own purchases during the infringement period. ….. 47. To require each individual claimant to establish loss in relation to his or her own spending and therefore to base eligibility under Rule 79 on a comparison of each individual claim would, as I have said, run counter to the provisions of s.47C(2) and require an analysis of the pass-on to individual consumers at a detailed individual level which is unnecessary when what is claimed is an aggregate award. Pass-on to consumers generally satisfies the test of commonality of issue necessary for certification.”
“… procedural and evidential rules must not make it practically impossible or excessively difficult to vindicate … justiciable rights”
“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 in question. There must be some evidence of the availability of the data to which the methodology is to be applied.”
“sufficiently credible or plausible”, “some basis in fact”, “a realistic prospect of establishing loss on a class-wide basis”, “the methodology cannot be purely theoretical or hypothetical”, “grounded in the facts of the particular case”, “some evidence of the availability of the data to which the methodology is to be applied.”
“The common law takes a pragmatic view of the degree of certainty with which damages must be pleaded and proved.”
“162. We recognise, as both Mr Ward and Mr Harris emphasised, that the proposed survey will play a significant role in the quantification of damage. The effective conduct of such a survey may be challenging. But we do not accept Mr Ward’s submission that Mr Holt should have designed, at least on a provisional basis, a survey for the purpose of the CPO applications. Expert evidence at this stage should explain the methodology proposed and indicate the available sources of data to which it will be applied, but it does not have to provide detailed elaboration of the way the analysis or analyses will be conducted. As Mr Holt explained, the design of such a survey will be made by those with particular skill in that field, which we consider is entirely reasonable. It would be wholly disproportionate to expect a CPO applicant to engage survey consultants and produce their evidence at the certification stage. 163. Mr Harris further submitted that for the survey to be representative it would have to be carried out, “as a bare minimum”, at every origin station within the two networks; and probably also at all stations on routes where a passenger can transfer from the tube, DLR or other train service without returning to the station entry-hall or concourse. We regard those submissions as wholly misconceived. Properly constructed and conducted surveys of relatively small samples are widely used to gain representative evidence, including in the field of public transport. …”
“(i) another ticket for the full journey may have been cheaper than a Boundary Fare, for instance a discounted, advance ticket; (ii) the passenger may have been able to achieve some other preferable, alternative discount, for instance a group discount; (iii) another point-to-point ticket from somewhere in the outer zone of the validity of the passenger’s Travelcard to the destination may have been cheaper than (or the same price as) the equivalent Boundary Fare; (iv) the passenger may not have had his/her Travelcard available at the moment of purchase and/or at the time of travel; (v) the passenger may have had a Travelcard that was not valid for the requisite period (for instance, the passenger had a 7-day Travelcard, but wanted to return in a fortnight’s time, or was not sure when s/he was planning to return); (vi) the passenger may not have had the time or inclination (for a very small absolute saving) to devote any extra effort to choosing and buying a Boundary Fare e.g. because s/he was in a hurry and/or was going to be reimbursed anyway (bearing in mind that the proposed class includes business purchases); (vii) more widely, the passenger may not have cared about price optimisation to begin with, especially for a small absolute amount and/or if being reimbursed.”
“The Infringement consists in a breach by the Proposed Defendants of the Chapter II prohibition. In summary, the Proposed Class Representative’s case on … abuse is as follows: … Abuse: The abuse, which is continuing, consists in the Proposed Defendants’ neglecting of their special responsibility as dominant undertakings through failing to take any or sufficient steps to prevent Class Members from being double-charged for part of the service provided to them. In practice, the abuse consists in failing to make Boundary Fares sufficiently available for sale, and/or failing to ensure, for example through better staff training, amended sales procedures, or increased customer-facing information, that customers are aware of the existence of Boundary Fares and buy an appropriate fare which avoids them being charged twice for part of their journeys.”
“57. … a body such as Deutsche Post which has a statutory monopoly over a substantial part of the common market may be regarded as holding a dominant position within the meaning of Article 86 of the Treaty. 58. Thus, the exercise by such a body of the right to demand the full amount of the internal postage, where the costs relating to the forwarding and delivery of mail posted in large quantities with the postal services of a Member State other than the State in which both the senders and the addressees of that mail are resident are not offset by the terminal dues paid by those services, may be regarded as an abuse of a dominant position within the meaning of Article 86 of the Treaty. 59. In order to prevent a body such as Deutsche Post from exercising its right, provided for by Article 25(3) of the [Universal Postal Convention] to return items of mail to origin, the senders of those items have no choice but to pay the full amount of the internal postage. … 61. It follows from all the foregoing considerations that, in the absence of an agreement between the postal services of the Member States concerned fixing terminal dues in relation to the actual costs of processing and delivering incoming trans-border mail, it is not contrary to Article 90 of the Treaty, read in conjunction with Articles 86 and 59 thereof, for a body such as Deutsche Post to exercise the right provided for by Article 25(3) of the UPC, in the version adopted on14 December 1989 , to charge, in the cases referred to in the second sentence of Article 25(1) and Article 25(2) thereof, internal postage on items of mail posted in large quantities with the postal services of a Member State other than the Member State to which that body belongs. On the other hand, the exercise of such a right is contrary to Article 90(1) of the Treaty, read in conjunction with Article 86 thereof, in so far as the result is that such a body may demand the entire internal postage applicable in the Member State to which it belongs without deducting the terminal dues corresponding to those items of mail paid by the abovementioned postal services.” (Emphasis added)
“142. … the Court of First Instance noted the settled case-law, according to which an undertaking abuses its dominant position where it charges for its services fees which are disproportionate to the economic value of the service provided (see, inter alia, Case 226/84 British Leyland v Commission [1986] ECR 3263, paragraph 27, andCase C-340/99 TNT Traco[2001] ECR I-4109 , paragraph 46). 143. As the Court of First Instance held at paragraph 164 of the judgment under appeal, …, the conduct of DSD which is objected to … which consists in requiring payment of a fee for all packaging bearing the DGP logo and put into circulation in Germany, even where customers of the company show that they do not use the DGP system for some or all of that packaging, must be considered to constitute an abuse of a dominant position within the meaning of the provision and the case-law referred to above. …”
“The Facebook network allows private users to use a multi-functional platform on which they can communicate with other users, especially with people that are close to them (friends), grant access to texts, photos and videos (share) and set up or join groups of interest. To be able to use this service, users have to sign up on Facebook and create a personal Facebook account with a user profile containing information on themselves and their personal situation. They can also specify their interests and add a profile picture. Based on this information, Facebook provides users with personal Facebook pages. The home page of an account displays in a standardised form (news feed) recent information (posts) posted by the users’ friends or third parties to which the user has subscribed. Users can post content via “status updates”
“… an abuse of power cannot be denied on these grounds. The court’s reasoning fails to consider the interest of those users that do not want to refrain from using Facebook but find it equally important that the collection and processing of their data is limited to what is necessary for the use and financing of the network. By expanding the typical offer … of a social platform with the “offer of a personalised user experience” that is also based on data generated from off-Facebook user activities, Facebook imposes a service on them they might not want, or in any case for which they are not willing to provide access to personal data they have not provided to Facebook itself. There is no need to establish whether by offering this personalised user experience, Facebook is tying two separate products (the provision of functionalities for the use of its network on the one hand and the provision of services based on data generated off-Facebook on the other) or – which is more likely – simply expanding one service. This service expansion is relevant from an antitrust perspective because it means that private users of the platform can only have access to a service they consider indispensable in conjunction with another service they do not want …. They are not given the choice of whether they want to use the network with a more “personalised experience” that is associated with Facebook’s potentially unlimited access to information about their off-Facebook online activities, or whether they only want to consent to a level of personalisation that is based on data they reveal on facebook.com itself.”
“… could not possibly be liable for any failure by such third parties … to inform customers about the possibility of a Boundary Fare, or to respond adequately to inquiries, since it is in no position to set the terms on which such independent entities sell their tickets”
“71…. If Boundary Fares had been widely available and offered from the Respondents’ own outlets, it seems to us well arguable that this would have influenced the behaviour of competing third party sellers, and that customer demand would have led those third parties similarly to make these fares readily available from them. 72. We should add that First MTR and Stagecoach, unlike LSER, expressly did not seek to strike out the claims in respect of third party sellers. Ms Abram for Stagecoach sought to argue that as the class includes eligible customers who purchased from third party sellers, the Applicant’s economic evidence should have addressed the way the conduct of the Respondents is likely to have influenced those third parties. As we understood it, that argument was not advanced in support of a strike out/summary judgment application and, in any event, it is misconceived. An applicant for a CPO is not expected as part of the application to put forward its full economic evidence. This point is a matter of likely causation of loss, which will no doubt be explored further if a CPO is granted.”
“There is simply no reason why LSER ought to be obliged at law, particularly in price-regulated environment, to allow customers to combine one type of discount, given for specific reasons, often for specific journeys/flows and at specific times, with some other discount(s), thereby allowing double discounting.”
“… a Boundary Fare should not properly be regarded as a discount. It is more appropriately viewed as the fare for the part of a journey not already paid for and covered by a Travelcard.”