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Competition Appeal Tribunal issues Ruling on future conduct of proposed collective proceedings against water companies

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Photo by Linus Nylund

Rhodri Thompson KC and Lucinda Cunningham represented the Proposed Class Representative, Professor Carolyn Roberts, in the first case management conference before the Competition Appeal Tribunal (comprising the President, Ian Forrester KC and Professor Alasdair Smith) in proposed collective proceedings against five water companies (the “CMC”). The Tribunal considered that the applications raised novel and interesting questions of case management in circumstances where there are ongoing regulatory proceedings by the Water Services Regulation Authority (“Ofwat”) (who was also represented at the CMC). Rhodri, Christopher Brown and Lucinda are also involved in a sixth claim against Thames Water raising parallel issues.

The Tribunal issued its Ruling on the future case management of the proceedings which, among other things, listed two hearings (one in September 2024 and one in January 2025, each of 1 week) to deal with what it terms “vanilla” and “non-vanilla” certification issues. The vanilla certification issues were those issues relevant to the authorisation and eligibility criteria stated in section 47B of the Competition Act 1998. The non-vanilla certification issues were categorised as: (1) the interaction of the collective proceedings regime and the regulatory regime (overseen by Ofwat), (2) the interaction of ongoing investigations or proceedings under the regulatory regime (by Ofwat and the Environment Agency) and the parallel course of the collective proceedings, and (3) interrelation between the proposed claims and the concurrent competition jurisdiction of Ofwat under the Competition Act 1998 (Ruling, [8]).

The Ruling is a further example of the novel issues to which the collective proceedings regime under the Competition Act 1998 continues to give rise, in circumstances where, in the words of the President, there are “synergies between different types of proceeding”.

Rhodri Thompson KC, Christopher Brown and Lucinda Cunningham are instructed by Leigh Day on behalf of the Proposed Class Representative.

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Judgment

Leigh Day Press Release