Published online by Cambridge University Press: 29 May 2015
Over the course of 2013–15, there have been significant developments in the reform of class actions in Europe. The European Commission published its Recommendation of common principles concerning collective redress in June 2013, whilst the Consumer Rights Act 2015 – which was introduced into the United Kingdom Parliament in January 2014 and obtained Royal Assent on 26 March 2015 – contains a class action for competition law infringements. Although there is some ‘common ground’ between these legislative instruments, their divergences are far more legally significant, and comprise the focus of analysis in this article. Regarding the two topics of standing to sue, and the opt-in versus opt-out approach to forming the class, the approaches of the European Commission and the UK Parliament differ markedly, reflecting the deep policy, political and judicial divisions which have manifested in this area of reform for over a decade. The legislators have also ultimately chosen different scopes of application, with the European Commission preferring a ‘horizontal’ approach to reform, whilst the UK Parliament has pursued a sector-specific reform agenda. In respect of standing to sue and the opt-in versus opt-out debate, there are numerous sound legal and political reasons that manifestly support the UK law-makers’ decision to depart from the 2013 Recommendation. However, in respect of the horizontal-versus-sectoral debate, the topsy-turvy history of reform at both European and domestic levels has resulted, ironically, in both the Commission and UK policy-makers reversing the views which each had initially adopted within the past decade. Undoubtedly, as these reform measures demonstrate, the collective redress landscape is both evolving and controversial.
The author is a serving member of the Civil Justice Council of England and Wales (CJC), was a former member of the CJC/MOJ Working Parties on Contingency Fees and on Third Party Funding, and was a former member of the Competition Appeal Tribunal (CAT) Class Actions Working Party which was responsible for drafting rules of court for the foreshadowed class action (referred to in note 4 below). However, the views expressed in this article are written in a personal academic capacity, and should not be taken to necessarily represent the views of any entity with which the author is associated or of which the author is or was a member.
1 Consumer Rights Act 2015, c 15 (with Royal Assent proclaimed at: http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/150326-0002.htm#15032625000607) [last accessed 17 April 2015].
2 The text of the Act is available at: http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted/data.htm [last accessed 17 April 2015]. Sch 8 inserts new relevant provisions into Pt 1 of the Competition Act 1998 and into the Enterprise Act 2002.
3 The reform was promulgated by the Dept of Business, Innovation and Skills (BIS), via the consultation, Private Actions in Competition Law: A Consultation on Options for Reform (April 2012). The Government Response on this important consultation was published on 29 January 2013.
4 Prepared pursuant to s 15B(1) of the Enterprise Act 2002, as inserted by Sch 8 of the Consumer Rights Act 2015, and available for perusal at http://www.catribunal.org.uk/247-8406/Draft-Tribunal-Rules-on-Collective-Actions.html [last accessed 19 April 2015]. The rules have been the subject of a formal consultation, as part of the Competition Appeal Tribunal Rules of Procedure: Review by the Rt Hon Sir John Mummery, which closed on 3 April 2015. At the time of writing, the feedback to that consultation is being analysed. The rule numbering in this article adopts the numbering in the originally-published draft CAT rules (and not the rules re-numbering adopted in that consultation).
5 Commission Recommendation (EC) 2013/396/EU  OJ L201/60.
6 To quote the summary of the 2013 Recommendation by the Commission at: http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm#comrec [last accessed 17 April 2015].
7 See note 5 above, Recital 6, p L201/60.
8 During its passage through Parliament, the relevant provisions of Sch 8 were not the subject of disagreement between the House of Commons and the House of Lords during debate. However, other provisions of the Consumer Rights Bill 2013–14, especially to do with ticket touting, became subject to the ‘ping-pong’ procedure, 12 January – 9 March 2015. During the Commons debate, Sch 8 was passed with minor amendments which are not relevant for the purposes of this article.
9 Per Book XVII of the Code of Economic Law, ‘Specific jurisdictional procedures’, Title 2, ‘The collective redress action’, Act of 28 March 2014, and in force 1 September 2014. For an excellent detailed analysis, see, eg Voet, S, ‘Belgium’s New Consumer Class Action’ in V Harsagi and C van Rhee (eds), Multi-Party Redress Mechanisms in Europe: Squeaking Mouses? (Intersentia, Antwerp, 2014)Google Scholar. For an English translation of the regime, see http://news.whitecase.com/57/3281/downloads/collective-action---english-free-translation---march-2014.pdf [last accessed 17 April 2015], to which the author has referred for the purpose of this article.
10 Inserted in Book IV of the Consumer Code, 14th Parliament (session of 13 February 2014), and available at http://www.assemblee-nationale.fr/14/ta/ta0295.asp [last accessed 17 April 2015]. The French Constitutional Council approved the constitutionality of the new law on 13 March 2014. It is known as the ‘Hamon Law’, and was promulgated in the Official Journal ((2014) 65 Journal Officiel 5400) on 18 March 2014. For further detail, see: Norton Rose Fulbright, ‘The new “Hamon Law” introducing French class actions and its effects on competition and distribution law’ (March 2014), available at http://www.nortonrosefulbright.com/knowledge/publications/114016/the-new-hamon-law-introducing-french-class-actions-and-its-effects-on-competition-and-distribution-law [last accessed 17 April 2015]. For further discussion, see, eg Mulheron, R, ‘Recent United Kingdom and French Reforms of Class Actions: An Unfinished Journey’ in E Lein et al (eds), Collective Redress in Europe: Why and How? (BIICL, 2015), pp 97–115 Google Scholar.
11 See note 5 above, Recital 7, p L201/60, and Articles 1–2, ‘Purpose and Subject Matter’, p L201/62.
12 Viz, the Group Litigation Order, contained in part 19.III of the Civil Procedure Rules 1998; and the representative rule, contained in Rule 19.6 of the Civil Procedure Rules (CPR).
13 An Act Introducing a Consumer Collective Redress Action in the Code of Economic Law, dated 28 March 2014, and in force 1 September 2014.
14 Book IV of the Consumer Code, 14th Parliament (session of 13 February 2014).
15 See note 5 above, Articles 4–7, ‘Standing to bring a representative action’, pp L201/62–3.
16 For a comparative perspective in the common law jurisdictions, see, eg Morabito, V, ‘Ideological Plaintiffs and Class Actions: An Australian Perspective’ (2001) 34 University of British Columbia Law Review 459 Google Scholar; Mulheron, R, The Class Action in Common Law Legal Systems (Hart Publishing, 2004), pp 303–309 Google Scholar.
17 Sch 8, s 47B(8), as amended slightly by the Public Bills Committee (Commons), dated 6 March 2014.
18 Under the heading, ‘Constitution of the claimant party by “opt-in” principle’, as a ‘specific principle relating to compensatory collective redress’.
19 Consumer Rights Act 2015, inserting a new s 47B(7)(c), and s 47B(11) in the Competition Act 1998.
20 Per Sch 8, s 47B(11)(b) (re ‘opt-out collective proceedings’ which involve non-domiciled class members); and s 49A(10)(b) (re collective settlements which involve non-domiciled class members). See too, the Explanatory Note to the Consumer Rights Bill, , http://www.publications.parliament.uk/pa/bills/cbill/2013-2014/0161/en/14161en.htm [last accessed 26 April 2014].
21 For the numerous reasons and justification underpinning the differing treatment of foreign class members, see, eg Mulheron, R, ‘In Defence of the Requirement for Foreign Class Members to Opt In to an English Class Action’ in D Fairgrieve and E Lein (eds), Extraterritoriality and Collective Redress (Oxford University Press, 2012)Google Scholar, ch 14; and Mulheron, R, ‘The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of Vivendi ’ (2012) 75 Modern Law Review 180 CrossRefGoogle Scholar.
22 Book IV of the Consumer Code, Article 423-1 (ie no damages for personal, physical or psychiatric injury permitted).
23 See note 5 above, Article 30.
24 Sch 8, s 47C(8), and critiqued by the author as being an inappropriate bar on funding in: ‘Damages-Based Agreements’, in R Pirozzolo (ed), Litigation Funding Handbook (The Law Society, 2014), ch 7.
25 Key documents include: Green Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2005) 672 (19 December 2005); European Commission Staff Working Paper Accompanying the Green Paper, SEC (2005) 1732; White Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2008) 165 (2 April 2008); European Commission Staff Working Paper Accompanying the White Paper, SEC (2008) 404 (2 April 2008); European Parliament, Resolution on the White Paper on Damages Actions for Breach of the EC Antitrust Rules, 2008/2154(INI) (26 March 2009). All documents are to be found at http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html [last accessed 18 April 2015].
26 Key documents include: Green Paper on Consumer Collective Redress, COM (2008) 794 (27 November 2008); and a Consultation Paper for the purposes of a stakeholder’s meeting in Brussels on 29 May 2009. These are to be found at: http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm [last accessed 18 April 2015].
27 In the Green Paper on Consumer Collective Redress, ibid, five alternative options were explained: (1) no immediate action; (2) co-operation between Member States extending national collective redress systems to consumers from other Member States without a collective redress mechanism; (3) a mix of policy instruments to strengthen consumer redress (including collective consumer ADR, and extending small claims to deal with mass claims); (4) binding or non-binding measures for a collective redress judicial procedure to exist in all Member States; or (5) a combination of different elements from these options.
28 European Commission, Consumer Redress in the European Union: Consumer Experiences, Perceptions and Choices: Qualitative Study (2009); Civic Consulting (Lead) and Oxford Economics, Evaluation of the Effectiveness and Efficiency of Collective Redress Mechanisms in the European Union (2008).
29 The European Consumers’ Assn (BEUC), Private Group Actions — Taking Europe Forward (2007); European Economic and Social Committee, Defining the Collective Actions System and its Roles in the Context of Community Consumer Law (INT/348, 14 February 2008); Economist Intelligence Unit, Collective Litigation in Europe: A Survey (2007).
30 Green Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2005) 672 final, p 2, 1.2.
31 Communication from the Commission to the Council, the European Parliament, and the European Economic and Social Committee, COM (2007) 99 final, p 11.
32 Ibid, pp 7 and 11, respectively.
33 European Commission Joint Information Note, Towards a Coherent European Approach to Collective Redress: Next Steps, SEC (2010) 1192 (5 Oct 2010), issued by Vice-President Reding, Vice-President Almunia, and Commissioner Dalli (EU Commissioners for Justice, Competition and Consumer Policy, respectively). Earlier foreshadowed in a keynote speech by Vice-President Joaquin Almunia (responsible for EU Competition Policy), ‘Common Standards for Group Claims Across the EU’ (Law School, University of Valladolid, 15 October 2010).
34 European Commission, Towards a Coherent Approach to Collective Redress, SEC (2011) 173.
35 European Parliament Resolution No (2011/2089) (INI) (2 February 2012), p 15.
36 European Commission, Proposal for a Directive of the European Parliament and of the Council on Certain Rules Governing Actions for Damages under National Law for Infringements of the Competition Law Provisions of the Member States and of the European Union, COM (2013) 404 (11 June 2013); European Commission Staff Working Document, Practical Guide on Quantifying Harm in Actions for Damages Based on Breaches of Art 101 or 102 of the Treaty on the Functioning of the European Union, SWD (2013) 205 (11 June 2013). The European Parliament adopted the text of the Directive on 17 April 2014, and the text was approved by the Council of Ministers on 10 November 2014 – EP and Council Directive 2014/104/EU  OJ L349/1.
37 According to the European Commission’s press release (MEMO/13/531, 11 June 2013), the Directive ‘will apply to actions for damages available in Member States, whether individual (available in all Member States) or collective (currently available only in some Member States). However, the Directive does not oblige Member States to introduce collective actions if they are not available’ (see Recital 13 of Directive 2014/104/EU). See too: Law Societies Joint Brussels Office, Brussels Agenda, Parliament Excludes Collective Redress from Actions for Damages Proposal (February 2014), p 5.
38 European Commission, Proposal for a Directive on Certain Rules Governing Actions for Damages under National Law for Infringements of the Competition Law Provisions of the Member States and of the European Union, COM(2013) 404 final, p 23.
39 Committee on Economic and Monetary Affairs, Report, A7-0089/2014 (4 February 2014), p 33.
40 European Commission, Towards a European Horizontal Framework for Collective Redress, COM (2013) 401/2, p 4, note 10.
41 See note 5 above, Recital 7.
42 Ibid, Article 3(b).
43 See note 40 above, p 16.
44 See note 40 above, p 5.
45 Contained in cll 18–25 of the Financial Services Bill 2010 (Bill 51 09–10) (‘FSB’). The rest of the Bill progressed through wash-up, and achieved Royal Assent on 8 April 2010: Financial Services Act 2010, c 28.
46 See further, Mulheron, R, ‘Recent Milestones in Class Actions Reform in England: A Critique and a Proposal’ (2011) 127 Law Quarterly Review 288 Google Scholar.
47 FSB, cl 19(2).
48 Sch 8, s 47A.
49 Book IV of the Consumer Code, Article 423-1.
50 Ibid, Article 423-17. The action must be brought within five years of that decision: Article 423-18.
51 Per Article XVII.36 of the Code of Economic Law. See further: Voet, S, ‘Belgium’s New Consumer Class Action’ in V Harsagi and C van Rhee (eds), Multi-Party Redress Mechanisms in Europe: Squeaking Mouses? (Intersentia, Antwerp, 2014)Google Scholar, p 3.
52 Sorabji, J et al (eds), Improving Access to Justice through Collective Actions: Developing a More Efficient and Effective Procedure for Collective Actions (CJC Report, 2008)Google Scholar. The author was one of the contributing authors to that report.
53 Mulheron, R, Reform of Collective Redress in England and Wales: A Perspective of Need (Research Paper for submission to the CJC, February 2008)Google Scholar.
54 See note 52 above, recommendation 1, pp 137–140.
55 Ibid, pp 138–139, and Appendix A, ‘Stakeholder Consultation’, p 285.
56 See note 53 above, pp 9–14.
57 See note 52 above, p 17.
58 MOJ, Improving Access to Justice: Government Response (July 2009), p 6 .
59 Ibid, p 21.
60 Ibid, p 6 –.
61 See R Mulheron, ‘Recent Milestones’ (2011) 127 Law Quarterly Review 288, pp 297–315.
62 Ibid, pp 312–13.
63 No representative claim is possible under s 47B until an infringement (as defined in s 47A(5)) has been established. That decision, which paves the way for a potential follow-on action, may be made by the Office of Fair Trading (OFT), by the Competition Appeal Tribunal (CAT), or by the European Commission, per s 47A(6).
64 The previous s 47B has been substituted, by virtue of the Consumer Rights Act 2015, per s 5 of Sch 8.
65 The action has been available since 20 June 2003 (inserted by the Enterprise Act 2002, c 40, s 19).
66 Pursuant to s 47B(1).
67 Pursuant to: Specified Body (Consumer Claims) Order 2005, SI 2005/2365.
68 The Consumers Association v JJB Sports PLC 1078/7/9/07. http://catribunal.org/239-640/1078-7-9-07-The-Consumers-Association.html [last accessed 18 April 2015]
69 ‘Which? action to settle’ (The Lawyer, 10 December 2007) (‘[a]n intense media campaign in early 2007 by Which? promised redress for hundreds of thousands of customers, but the time-lag between the price-fixing and the action meant that many people no longer possessed vital evidence such as receipts. Ultimately, the action named just 144 customers aiming to secure compensation of £20 each’).
70 As discussed in note 53 above, ch 8.
71 See Submission by Which? to the OFT’s Discussion Paper of April 2007 (2 July 2007) [5.1]–[5.2], prepared by Ms Ingrid Gubbay, former Principal Campaigns Lawyer for Which?, in light of Which?’s experiences under the JJB Sports case, and cited in note 53 above, p 40.
72 Per the former Head of Legal Affairs, Dr Deborah Prince, and cited in note 53 above, p 41.
73 Private Actions in Competition Law: Effective Redress for Consumers and Business: Recommendations from the OFT (OFT916, 26 November 2007) [7.12], citing, in note 28 above, the JJB Sports case.
74 P Ruttley (Clyde & Co LLP), ‘The Lessons of the UK Consumers’ Association case (2007)’ (EU Civil Justice Day, Law Society, 25 October 2007), cited in note 53 above, pp 40–41.
75 Dr Deborah Prince, former Head of Legal Affairs, Which?, personal communication (6 December 2007), and cited in note 53 above, p 41.
76 See note 74 above, slide 28; and cited in note 53 above, p 44.
77 As did Which?, as evidenced by the comments by former Principal Campaigns Lawyer for Which?, Ms Ingrid Gubbay, in the Submission by Which? to the OFT’s Discussion Paper (‘[w]e have always supported the proposal that the private enforcement regime should be opened up to other bodies for designation. The current system simply offers little real threat to would-be cartelists’) (and cited in note 53 above, p 44).
78 UFC Que Choisir v Orange France, SFR and Bouygues Telecom (2007).
79 See BEUC, Private Group Actions—Taking Europe Forward (X/049/2007, 8 October 2007); and also derived from presentations given by UFC Que Choisir at various conferences: ‘Stakeholder Workshop on Collective Redress’ (DG-SANCO, Brussels, 6 June 2008); ‘Conference on Collective Redress’ (DG-SANCO, Lisbon, 9–10 November 2007); ‘Collective Redress Brainstorming Event (DG-SANCO, Leuven, 29 June 2007), and discussed further in Mulheron, R, ‘The Case for an Opt-out Class Action for European Member States: A Legal and Empirical Analysis’ (2009) 15 Columbia Journal of European Law 409 Google Scholar, 433–434.
80 Pursuant to s 47B(7).
81 OFT, Private Actions in Competition Law (OFT916, 26 November 2007) at [4.6], [4.13].
82 The numerous challenges to the adequacy of the representative claimant, on the basis of an alleged conflict of interest, across the common law class action regimes of Australia’s federal regime, Canada’s provincial regimes, and the United States’ federal regime, are discussed in Mulheron, R, The Class Action in Common Law Legal Systems: A Comparative Perspective (Hart Publishing, 2004), pp 276–287 Google Scholar. The potential conflicts in distribution chains, and the problematic status of the passing-on defence, are also briefly discussed in Mulheron, R, ‘Competition Law Cases under the Opt-Out Regimes of Australia, Canada and Portugal’ (2008) Research Paper for Department of Business, Enterprise and Regulatory Reform, pp 29–39 Google Scholar.
83  EWCA Civ 1284 (Mummery LJ, with Toulson and Rimer LJJ agreeing).
84 Other methods of resolving conflicts of interest include: re-defining the common issues; redefining the class; or by excluding some class members from the class action altogether.
86 CAT Draft Rules, r 6(4) and 8(1)(a).
87 Per Sch 8, s 47B(8)(a).
88 See the definition of ‘representative action’ in Article 3(d), and the further provision in Articles 6 and 7.
89 Per the inserted provision in the Enterprise Act 2002, s 15B(1)(c).
90 This table was originally produced in Mulheron, R, ‘Recent United Kingdom and French Reforms of Class Actions: An Unfinished Journey’ in E Lein et al (eds), Collective Redress in Europe: Why and How? (BIICL, 2015)Google Scholar, p 113.
91 See note 5 above, Article 4(a) and (b).
92 Private Actions in Competition Law: Government Response (January 2013), [5.32].
93 Mulheron, R, ‘Opting in, Opting Out, and Closing the Class: Some Dilemmas for England’s Class Action Lawmakers’ (2010) 50 Canadian Business Law Journal 376 Google Scholar, p 384.
94 Eg Sweden’s Group Proceedings Act 2002; Poland’s Act Asserting Claims in Class Proceedings 2009; Italy’s Art 140 bis of the Consumer Code, amended by Law no 99 of 23 July 2009, and by Law no 27 of 24 March 2012; Switzerland’s group action in its Civil Procedure Code, Article 71.
95 As contained in Rule 23 of the US Federal Rules of Civil Procedure, in effect since 1966.
96 As contained in Pt IVA of the Federal Court of Australia Act 1976, in effect 4 March 1992.
97 The first common law provincial action was Ontario’s Class Proceedings Act 1992, in effect 1 January 1993.
98 Discussed in more detail in Mulheron, R, ‘The Case for an Opt-out Class Action for European Member States: A Legal and Empirical Analysis’ (2009) 15 Columbia Journal of European Law 409 Google Scholar, 415–25.
99 Right of Proceeding, Participation and Popular Action, L No 83/95 (31 August 1995); and Establishing the Legal System Applicable to Consumer Protection, L No 24/96 (31 July 1996).
100 Pimentel, JM and Judice, JM, ‘Portugal’ in I Dodds-Smith and A Brown (eds), Class and Group Action, 7th ed (ICLG, 2015)Google Scholar, [1.9]. http://www.iclg.co.uk/practice-areas/class-and-group-actions/class-and-group-actions-2015/portugal [last accessed 26 April 2015]
101 Administration of Justice Act, Act No 181 (28 February 2007), ch 23, §§ 254a–254k.
102 Act on Collective Settlement of Mass Damages (27 July 2005) (the ‘WCAM Act’). There were seven court-approved settlements reached under the Act between 2006 and March 2014, according to a presentation by Prof. Anne Keirse, ‘Collective Redress: Dutch Experiences’, at ‘Collective Redress: Experiences and Prospects’ (University of Zurich, 3–4 October 2014). A proposal to introduce into Dutch law a collective damages action, instituted by a representative entity, is presently under consultation, for scenarios where the defendant does not wish to settle a collective claim.
103 European Parliament, Resolution of 2 February 2012, ‘Towards a Coherent Approach to Collective Redress’, 2011/2089(INI),  (‘the European approach to collective redress must be founded on the opt-in principle, whereby victims are clearly identified and take part in the procedure only if they have expressly indicated their wish to do so’).
104 Eg European Parliament, Resolution of 26 March 2009 on the White Paper on Damages Actions for Breach of the EC Antitrust Rules, 2008/2154 (INI), Recital I (‘it is essential that procedures and safeguards are put in place to ensure that all parties receive fair treatment and that, at the same time, there is no abuse of that system, such as has occurred in other legal systems, in particular in the United States’); European Economic and Social Committee, Opinion on the White Paper on Damages Actions for Breach of the EC Antitrust Rules, 2009/C, 24–25 March 2009, [4.4.2] (‘The EESC supports the broad consensus among European politicians and stakeholders that the EU must avoid the risk of US-style abuses’); Commr Neelie Kroes, Competition Policy, ‘Making Consumers’ Right to Damage a Reality: The Case for Collective Redress Mechanisms in Antitrust Claims’ (Speech/07/698) (‘I am well aware of the concerns about importing a system which, in combination with other features, have led to excesses in non-European jurisdictions. … We have learned from these foreign experiences, their strengths and their weaknesses. We are not in favour of introducing wholesale a system which would be alien to our European traditions and cultures, or which would encourage unmerited claims. I am confident that we, in Europe, are able to design solutions firmly embedded in our European cultures and traditions’).
105 See note 5 above, Recital 2 (‘Europe must refrain from introducing a US-style class action system or any system which does not respect European legal traditions’).
106 European Parliament, Resolution of 2 February 2012 (2011/2089 (INI)), .
107 Noted in P Haas, ‘Switzerland’ in Class and Group Actions 2014, 6th ed (ICLG, 2014), [1.1].
108 The so-called Group Settlement Procedure will, if enacted, be contained in the Federal Financial Services Act, Section 2, Articles 105–116 (discussed at the conference, ‘Collective Redress: Experiences and Prospects’ (University of Zurich, 3–4 October 2014)).
109 Karlsgodt, P (ed), World Class Actions: A Guide to Group and Representative Actions Around the Globe (Oxford University Press, 2012)Google Scholar, [18.104.22.168.2].
110 See Book IV of the Consumer Code, Article 423-5.
111 New Rules on Class Actions under Danish Law’ (Procedural Law Division, 26 June 2007), pp 4–5 [copy on file with the author].
112 See note 5 above, European Commission, Article 21.
113 See the dual-sided arguments articulated in note 85 above, pp 37–38, and the law reform reports and sources cited therein.
114 Viz, Scottish LC, Multi-Party Actions: Court Proceedings and Funding (DP 98, 1994); and later, Multi-Party Actions (Final Report, 1996); Law Society Civil Litigation Committee, Group Actions Made Easier (1995), which proposed an opt-in rule of 14 parts; Lord Chancellor’s Dept (LCD), Proposed New Procedures for Multi-Party Situations: Consultation Paper (1997); and the subsequent Draft Rules and Practice Direction (1999); LCD, Representative Claims: Proposed New Procedures: Consultation Paper (2001), and Consultation Response (2002), all discussed in note 85 above, pp 94–97.
115 To reiterate, the opt-in model was implemented via the Group Litigation Order in CPR Pt 19.III, was always a feature of the representative rule in CPR 19.6, and was implemented in the previous s 47B of the Competition Act 1998.
116 This section of the article draws upon the author’s previous conference presentations: ‘Increasing Access to Justice through EU Class Actions’ (European Parliament, Brussels, 12 November 2012) (presentation: ‘Access to Justice as a Human Right: An English Perspective’); and ‘European Competition and Consumer Day’ (Dublin Castle, Dublin, 24 May 2013) (presentation: ‘Class actions for Competition Law Grievances in England: Is Reform (Finally) in the Offing?’). Some of these ten points are drawn from and expanded upon in the author's earlier works, Reform of Collective Redress (see note 53 above), ‘The Case for an Opt-Out Class Action for European Member States’ (2009) 15 Columbia Journal of European Law 409, and, ‘The Impetus for Class Actions Reform in the Competition Law Sector from a Judicial and Litigant Perspective’ in S Wrbka et al (eds), Collective Actions: Enhancing Access to Justice and Reconciling Multilayer Interests? (Cambridge University Press, 2012), ch 15.
117 See note 53 above.
118 Per CPR 19.6.
119  EWCA Civ 1284,  2 WLR 203 (‘Emerald’).
120 See, eg formerly Nutech Brands Inc v Air Canada  CanLII 7095 (Ont SCJ), and now litigated under the title, Airia Brands Inc v Air Canada  ONSC 6286. The author was one of the expert witnesses in this case, on behalf of one of the defendant airlines, Cathay Pacific Airways Ltd.
121 See In Re Air Cargo Shipping Services Antitrust Litig, 2008 US Dist LEXIS 107882 (EDNY, 26 September 2008).
122 See the website of Maurice Blackburn, ‘Air Cargo Class Action’, and settlement proceedings reached on 13 Sep 2013, including the Court Notice to Group Members: http://www.mauriceblackburn.com.au/areas-of-practice/class-actions/current-class-actions/air-cargo-class-action.aspx [last accessed 18 April 2015].
123  EWCA Civ 1284, .
124  EWHC 741 (Ch) – (Chancellor Morritt), and aff’d on appeal, ibid.
125 Drawing from the oft-cited meaning of ‘same interest’ in Duke of Bedford v Ellis  AC 1 (HL) 8, and cited in Emerald  EWCA Civ 1284, .
126 Ibid, .
127 Per Prudential Ass Co Ltd v Newman Industries Ltd  Ch 229 (Vinelott J).
128 See, eg The Kyriaki  1 Lloyd’s Rep 484; Haarhaus v Law Debenture Trust Corp  BCLC 640, and discussed further in Mulheron, R, ‘From Representative Rule to Class Action: Steps Rather Than Leaps’ (2005) 24 Civil Justice Quarterly 424 Google Scholar, 441–442.
129  EWHC 741 (Ch), .
130 R Mulheron, ‘A Missed Gem of an Opportunity for the Representative Rule’  European Business L Rev 49 (re the appeal decision); and ‘Emerald Supplies Ltd v British Airways PLC: A Century Later, the Ghost of Markt Lives On’  Competition Law 159 (re the first instance decision).
131 R Mulheron, ‘The Ghost of Markt Lives On’, ibid, p 159.
132 R Mulheron, ‘A Missed Gem’, note 130 above, p 49.
133 Case 1078/7/9/07. Discussed further in note 53 above, ch 8.
134 M Herman, ‘Everyone’s a winner in football shirts settlement’ (The Times, 9 January 2008). The terms and result of the settlement remained confidential.
135 The list of GLOs is available from the Ministry of Justice, at http://www.justice.gov.uk/courts/rcj-rolls-building/queens-bench/group-litigation-orders [last accessed 18 April 2015].
136 The author has discussed this particular conundrum elsewhere, eg note 53 above, ch 3; and ‘The Ghost of Markt Lives On’, see note 130 above, pp 171–4.
137 See the categorisation of GLOs in note 53 above, ch 3.
138  EWHC 741 (Ch), .
139 Ibid, .
140 Boake Allen Ltd v HMRC  UKHL 25,  1 WLR 1386, .
141 As inserted by s 18 of the Enterprise Act 2002.
142 BCL Old Co Ltd v Aventis SA  CAT 2, .
143 Cityhook Ltd v OFT  CAT 18, –.
144 Albion Water Ltd (Notice of Claim for Damages dated 2 July 2010).
145 NJ and DM Wilson (Notice of Claim for Damages dated 21 January 2009).
146 DB Fowles (Notice of Claim for Damages dated 24 January 2011).
147 Freightliner Ltd (Notice of Claim for Damages dated 28 August 2008).
148 JJ Burgess & Sons (Notice of Claim for Damages dated 23 August 2007).
149 Moy Park Ltd (Notice of Claim for Damages dated 15 February 2010).
150 Emerson Electric Co (Notice of Claim for Damages dated 28 February 2007).
151 See note 53 above, ch 13.
152 Sir Gerald Barling, ‘Collective Redress for Breach of Competition Law—A Case for Reform?’  Competition LJ 5, 7.
153 Enron Coal Services Ltd (In Liq) v English Welsh & Scottish Rwy Ltd  EWCA Civ 2, at –.
154 Sch 8, s 4, whereby s 47A has been substituted.
155 2008 US Dist LEXIS 50415 (ND Cal, 25 Apr 2008, Judge Breyer), referring to settlement agreements dated 15 Feb 2008, approved pursuant to r 23(e) of the US FRCP. See sub-class descriptions at order 3, pp 3–4.
156 Cf earlier settlements which differed in their treatment of US and UK class members, eg Kruman v Christie’s Intl PLC, 284 F 3d 384 (2d Cir 2003); In re Auction Houses Antitrust Litig, 2001 US Dist Lexis 1713 (SDNY 2001).
157 See further Mulheron, R, ‘The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England’ (2012) 75 Modern Law Review 180 CrossRefGoogle Scholar, 186–190.
158 As analysed in Mulheron, R, ‘The Case for an Opt-out Class Action for European Member States’ (2009) 15 Columbia Journal of European Law 409 Google Scholar, 441–48. Six separate legal problems are discussed therein.
159 Per the vitamin price-fixing cartel in F Hoffmann-La Roche Ltd v Empagran SA, 542 US 155 (2004).
160 For English class members who sued in respect of the HIV haemophiliac litigation, and Vioxx, see, respectively: Factor VIII or IX Concentrate Blood Products Liab Litig, 408 F Supp 2d 569 (ND Ill 2006), aff’d: 484 F 3d 951 (7th Cir 2007); Vioxx Litig, 395 NJ Super 358 (2007), aff’d: 936 A 2d 968 (2007).
161 Securities Exchange Act, §§ 10(b), 20(a), 15 USC § 78a (1934).
162 For English investors excluded on that basis, see: Re Parmalat Sec Litig, 479 F Supp 2d 526 (SDNY 2007).
163 Per Daimler Chrysler AG Securities Litig, 216 FRD 291, 300–1 (D Del 2003).
164 242 FRD 76, 102–3 (SDNY 2007).
165 R Mulheron, ‘The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England’ (2012) 75 Modern Law Review 180.
166 The Deterrent Effect of Competition Enforcement by the OFT (Nov 2007), with key findings at [5.84]–[5.96].
167 Ibid, [5.84].
168 See the summary of the report provided in note 53 above, pp 60–62.
169 See note 53 above, pp 50–57.
170 R Mulheron, ‘Competition Law Cases under the Opt-out Regimes of Australia, Canada and Portugal’ (2008) Research Paper for BERR. There were 35 separate class actions, instituted in respect of competition law infringements, across the various Canadian provincial regimes, up to 2008.
171 OFT, Private Actions in Competition Law (OFT916, 26 November 2007), 73 [2.2].
172 BIS, Private Actions in Competition Law: Government Response (January 2013), [3.2].
173 Ibid, [3.8].
174 Ibid, [3.11].
175 Sir Gerald Barling, ‘Collective Redress for Breach of Competition Law’  Competition Law Journal 5, 19.
176  EWCA Civ 2, .
177 Noted in Mulheron, R, The Class Action in Common Law Legal Systems: A Comparative Perspective (Hart Publishing, 2004), p 48Google Scholar.
178 Table A1 is derived from the author’s comparative table in Mulheron, R, ‘Recent United Kingdom and French Reforms of Class Actions: An Unfinished Journey’ in E Lein et al (eds), Collective Redress in Europe: Why and How? (BIICL, 2015), pp 111–112 Google Scholar. To reiterate, the CAT Rules referred to in this article are in draft only, and have recently been consulted upon (see note 4 above).
179 To cite this triumvirate of goals of class action jurisprudence put forward by the Ontario LRC, Report on Class Actions (1982), p 118, and many other sources, cited in Mulheron, ibid, ch 3.
180 Private Actions in Competition Law: Government Response (January 2013), [5.13].
181 Access to Justice Inquiry: Issues Paper (Multi-Party Actions) (1996), , [2(a)].