“14. We consider that the Rules preclude any communication between a defendant or that defendant’s legal representative and a member (actual or contingent [footnote: in other words, communications are precluded where the period for opting in or opting out has yet to expire, which of course is the position here)] of a class identified or identifiable under a collective proceedings order made by the Tribunal where that communication concerns those collective proceedings, unless the Tribunal otherwise orders or (subject always to the Tribunal’s supervisory jurisdiction) the parties agree. 15. We consider that precisely the same restriction arises as between a proposed defendant (or that proposed defendant’s legal representative) and a proposed member of the class (i.e., someone who could be a member if a collective proceedings order were made) from the time a collective proceedings application is made.”
“1. The Defendants shall henceforth not communicate with members of the Class on matters concerning these collective proceedings, without the prior permission of the Tribunal. 2. The prohibition in paragraph 1 does not operate to prevent the Defendants communicating with members of the Class in the ordinary course of their business operations.”
“168. Apart from increased scrutiny of the claim by Large Business Purchasers when deciding whether to opt in, the key benefit that the Respondents rely on as achievable through opt-in proceedings relates to disclosure. In our view this is not a good reason to accede to the Respondents’ proposal, and any genuine issue that arises in relation to disclosure should be capable of being dealt with in another way. 169. The Tribunal has power under rule 89(1)(c) to order disclosure by any represented person, defined in rule 73(2) to include class members who have not opted out of opt-out proceedings as well as those who have opted in to opt-in proceedings. No distinction is drawn between those who participate on an opt-in or opt-out basis. Rather, the Tribunal has a broad discretion. It may well be that disclosure would not ordinarily be ordered from members of an opt-out class, but nothing precludes it. If an order for disclosure against certain class members was determined to be reasonably necessary and proportionate (Ryder Ltd v Man SE [2020] CAT 3 at [35(7)]), then we would expect that a way could and would be found to achieve that so as to ensure that the proceedings can be disposed of fairly. Examples might include some form of costs protection so that the burden is not shouldered unfairly as between class members, or potentially giving the relevant class members the option of being excluded from the claim by removing them under rule 85(3) (if not rule 82(2)), if the opportunity to opt-out would otherwise have expired. 170. We would also observe that disclosure from certain Large Business Purchasers may be of limited relevance. Whilst it could assist in relation to the levels of discount that they were able to negotiate (whether in relation to the overall price or any delivery charge element) and potentially in relation to pass-on by certain types of businesses to their customers, it would not obviously assist in determining the levels of discount obtained by other purchasers or, for example and if relevant, the approach to setting vehicle list prices.”
“The Shipping Companies’ challenge to those conclusions and that order can be brought only by way of judicial review. That is because s 49(1A) of the CA98 provides that an appeal from a decision of the Tribunal in collective proceedings lies to the Court of Appeal only where it is a decision “as to the award of damages or other sum (other than a decision on costs or expenses), or as to the grant of an injunction”
“5. The Defendants to the McLaren Proceedings shall have permission to communicate with Class Members for the purpose of seeking to obtain evidence or information in relation to the factual and/or expert issues in the McLaren Proceedings, without being required to obtain permission from the Tribunal or notify the Class Representative. Any communication adverting to the possibility of any formal application being made, or order sought against such Class Member shall require prior permission from the Tribunal.”
“An appeal lies to the appropriate court on a point of law arising from a decision of the Tribunal in proceedings under section 47A or in collective proceedings— (a) as to the award of damages or other sum (other than a decision on costs or expenses), or (b) as to the grant of an injunction.”
“… a case where no damages will arise at all because of an interlocutory decision will be a decision as to the award of damages” (paragraph [15]). In pragmatic terms the CAT observed (paragraph [18]): “Parties before the Tribunal can proceed on the basis that, assuming a point of law arises, contested interlocutory decisions, even of a contested case management nature, can be presumed, for the purposes of permission to appeal applications, to meet the requirement that they affect the final substantive outcome in terms of the level of damages awarded.”
“whether the decision affects the amount of damages to be awarded in some causal way” highlights the need for there to be “some” (sufficient) causal link between the decision and damages. The guidance from Merricks is that the link or effect does not have to be very direct or close. The test is not one capable of being applied with mathematical exactitude. However case law indicates for example: that a decision which brings the possibility of a claim for damages to an end (such as a strike out) is “as to” damages; that a decision going to the amount of a possible claim (for instance a decision that part of a claim is unsustainable) is “as to” damages; that a decision that a claim should not be struck out is “as to” damages, not least because if the appeal prevails the effect is as if the CAT should have struck out the claim; and that decisions as to the procedure to be applied to determine damages claims are also “as to” damages because the procedure adopted could affect the ultimate quantum. 56. There will however be an outer limit. In argument, citing Paccar, it was suggested that the outer limit was whether the decision under challenge brought the claim or part of a claim to an end. But that analysis seems too narrow. It follows from Merricks that decisions which affect how claims are to be run or adjudicated upon are also “as to” damages even where the decision does not bring the claim to an end. So for instance the Supreme Court treated whether the CAT was right to hold a trial within a trial as a decision “as to” damages and it also held that a dispute about whether distribution should be taken into account at the certification stage was “as to” damages. Disputes as to how broad common law principles apply to the evaluation of evidence relating to damages and as to the judicial tools and techniques at the CAT’s disposal (such as the broad axe) have also been held to be proper subject of the statutory appeal process and are therefore “as to” damages. They are reasonably described as principles of law and procedure which govern how a damages claim is to be determined and they all could ultimately affect quantum. Relationship of statutory right of appeal to judicial review 57. I am loathe at this stage in the development of the case law to express a definitive view as to how bright the line is as between an appeal and judicial review. I am though clear that the statutory right of appeal should be construed broadly in order to minimise the scope of judicial review. One of the legislative purposes identified by the Supreme Court in Merricks as guiding the operation of the regime was judicial efficiency. Judged through this optic there is only judicial inefficiency flowing from forcing litigants seeking to challenge CAT decisions to go via judicial review or (as in this case), even worse, proceed simultaneously via judicial review and a statutory appeal. 58. There is no logic in a conclusion that Parliament wished to give an appeal route a narrow scope leaving judicial review with a concomitantly broader scope. To the contrary there are good reasons why an appeal should take precedence over judicial review. First, in terms of judicial hierarchy it makes sense for challenges to CAT decisions to flow, to the greatest degree possible and consistent with the legislative purpose, to the Court of Appeal. Institutionally the CAT is presided over by a specialist High Court Judge and in individual cases High Court judges with suitable experience are routinely appointed to sit as the presiding judge. Judges who sit in the CAT acquire specialist skills and receive specialist training. A CAT panel routinely includes an economist. If judicial review were a normal route of challenge this would entail a challenge from a three person specialist CAT, to a non-specialist High Court judge sitting in the Administrative Court which could then lead to an appeal to the Court of Appeal. Judicial review inserts an unnecessary non-specialist step in the progress of a CAT decision to an appeal. Secondly, it is relevant that in practical terms there is not a great deal of difference (if any) between an appeal on a point of law and judicial review. There is no clear benefit in permitting judicial review to have a broad scope where there is no inherent forensic value to the exercise. Both proceed upon the basis of facts as found by the lower court or tribunal and in both an appropriate margin of discretion or appreciation is accorded to the first level trier of fact, especially if it is a specialist body. The traditional grounds of an appeal on a point of law are closely related to the traditional grounds of judicial review. The authors of De Smith’s Judicial Review, 9th Edition (2023) observe at paragraphs [16-018] and [16-019] that the powers of an appellate court will encompass all the grounds of judicial review within the rubric “points of law” and might “perhaps” even be greater.”
“It is a healthy principle that courts should be slow to give a statute an effect that is not expressly stated. Parliament should say what it means.”
“It is suggested that the question whether an implication should be found within the express words of an enactment depends upon whether it is proper, having regard to the accepted guides to legislative intention, to find the implication; and not whether the implication is ‘necessary’ or ‘obvious’.”
“Opt-out collective proceedings” are collective proceedings which are brought on behalf of each class member except— (a) any class member who opts out by notifying the representative, in a manner and by a time specified, that the claim should not be included in the collective proceedings, and (b) any class member who— (i) is not domiciled in the United Kingdom at a time specified, and (ii) does not, in a manner and by a time specified, opt in by notifying the representative that the claim should be included in the collective proceedings.”
“[52] Not as a matter of judicial decree and more as a matter of recommendation, I add this postface to comment how, in my opinion, communications with class members might be handled in the future to avoid what happened in the immediate case. [53] In this regard, I suggest that once a class action has commenced: a. If the defendant wishes to communicate with class members and the communication is: (a) out of the normal course of the defendant’s business or affairs; and (b) on a topic that is substantively significant to the class action, then - not as a matter of courtesy - but as a means to avoid problems and objections, the defendant’s lawyer should ask Class Counsel if there are any problems or objections to the notice. b. Class Counsel should respond with its objections, if any. Class Counsel should appreciate that for unofficial notices from the defendant, the court has a high threshold for exercising its jurisdiction to supervise the communication. c. If Class Counsel has comments, the defendant’s lawyer should consider Class Counsel’s comments and objections seriously. For example, Class Counsel may have advice as to how not to alarm the class members by the details of the notice. In a given case, it is even conceivable that Class Counsel may not wish to discourage the Class Members from obtaining such benefits as the defendant may be offering. d. If after considering Class Counsel’s comments, there remains a dispute between the parties about the notice, then the defendant’s counsel should consider inviting Class Counsel to schedule a case management conference to determine whether a motion is actually warranted to address the propriety of the notice. e. If after considering Class Counsel’s comments, there remains a dispute between the parties and the defendant’s counsel decides not to suggest a case management conference, then the defendant should issue its communication. The defendant, however, should understand that proceeding in this way runs the risk that the plaintiff will move for an order that a corrective notice be issued likely at the expense and possible embarrassment of the defendant. f. In any event, neither side should use the occasion of the notice opportunistically or tactically. g. If there is a motion, in deciding that motion, the court’s role is purely adjudicative. The court will not be deciding the merits of the case and will be making a decision in the context of the adversary system. It is not the court’s role to prejudge the merits of either side’s case.”
“By way of postscript and in order to be absolutely clear, we should deal with the canard that this non-communication obligation in some way inhibits defendants to collective proceedings from properly exercising their rights of defence.”
“The content of the Letters therefore cut across and undermined the potential benefits of collective proceedings, at least for these particular class members and potentially for all class members if and in so far as it influenced the potential make-up of the class. Even if we were wrong in our construction of the Rules, therefore, in our view the terms of the Letters were such that they plainly should not have been written.”