In February 2019 Woodsford announced that it is funding a £100m claim in the UK’s specialist competition court on behalf of millions of passengers who have paid twice for part of their journeys on Southeastern and South Western routes.
The claim has been filed in the UK’s Competition Appeal Tribunal (CAT) against a number of Train Operating Companies (TOCs) that run trains in and out of London.
It is alleged that these TOCS have not made “boundary” fares readily available for Travelcard holders to purchase, nor made passengers aware of their existence, leaving customers with little option but to buy a higher fare than they would have needed.
Boundary fares allow passengers who own a Travelcard to travel beyond the zones covered by their Travelcard without doubling up on payment. But the TOCs have done little or nothing to promote boundary fares; they are only sometimes available from ticket windows when expressly asked for and not available from ticket machines or online.
This imposition of an unfair price for fares is an abuse of the companies’ dominant position and in breach of UK and EU competition laws. The claim is a standalone claim, in the sense that it does not “follow-on” from a finding by the European Commission (EC) that competition law has been infringed.
The claim is unique in that it is both the first claim to be brought in the CAT on the basis of abuse of a dominant position and also the first standalone claim to be brought in the CAT. In contrast, other CAT claims tend to be premised on allegations of cartel behaviour and will often be follow-on claims where liability has been established by virtue of a decision from the EC.
The claim is currently stayed pending the Supreme Court decision in Merricks v Mastercard which will provide further guidance on the test for the granting of a Collective Proceedings Order (CPO).
Collective CAT claims are unavoidably novel as there have only been eight cases lodged since the changes to English competition law in 2015, which gave rights to individuals (consumers and businesses) to bring private damages actions and to allow authorised class representatives to bring collective proceedings on their behalf,
either on an opt-in or an opt-out basis.
Woodsford worked closely with Hausfeld, Charles Lyndon and Monckton Chambers to develop the legal strategy and financial structures on this ground-breaking case.
The innovative approach taken to the funding of the claim meant that the parties were able to avoid a costly preliminary issue hearing in relation to funding arrangements that was listed for November 2019, but vacated. This is again in contrast to how a number of other CAT claims have been run.
Woodsford is confident that the claim will succeed; delivering recompense to the affected travellers.
We believe the CAT regime provides opportunities for funders and forward-thinking, entrepreneurial law firms to develop claims that deliver redress to victims of corporate wrong-doing.