Private Antitrust Enforcement in the United Kingdom

by | Jun 21, 2023 | Antitrust

Private Antitrust Enforcement in the United Kingdom

Enforcement of competition law is, in the United Kingdom, not just the responsibility of the public enforcement agencies. Private antitrust enforcement plays perhaps an equally important role in enforcement of competition law. UK courts increasingly encourage those who claim that they have been harmed by exclusionary conduct, or another infringement of competition law, to start the appropriate private antitrust litigation.

Encouraging such private damages actions is an important part of competition policy in the United Kingdom. Just as the Sherman Act and federal antitrust law in the United States is based on the realization that the Federal Trade Commission and Antitrust Division of the Dept. of Justice cannot, by themselves, manage all appropriate antitrust enforcement litigation, so too has UK competition law reached the same conclusion. Just about every English court, including most importantly the Competition Appeal Tribunal, has issued some opinion supporting the rights of those harmed by a violation of competition law to bring an enforcement action.

Private antitrust enforcement litigation in the United Kingdom is, in general, similar to comparable litigation in the United States. [link to Private Antitrust Claims in the United States] In a private enforcement action an injured party will typically claim that a large corporation, or group of corporations, used their market power to engage in price fixing, improper exclusionary conduct, or another serious violation of competition law.

Private enforcement is effective in the United Kingdom because the Competition Act of 2002 encourages collective proceedings. A single plaintiff will often find that is not economically viable for just that one person to assert a claim by him or herself. Collective proceedings allow all those harmed by an infringement of competition law to together bring one infringement action. Combining these private actions makes it economically viable to bring these actions, and thus encourages antitrust litigation. Further, UK competition law allows many different types of individuals to bring private actions. For example, not just a direct purchaser, but also an indirect purchaser of goods, may bring a private antitrust action. This combination, allowing a wide range of potential plaintiffs to start an antitrust case, and the wide use of collective proceedings, encourages private competition law litigation in the United Kingdom.

Very importantly, while the United Kingdom allows the wide use of collective proceedings, the law the European Commission enforces does not. While the EU damages directive does allow private enforcement of an antitrust violation, the Collective Redress Directive does not allow those asserting a violation of EU competition law to combine each individual claim. And while the law of a member state may allow each claimant to, in one fashion or another, combine claims into one antitrust case, [Link to Private Competition Law Claims in Europe] the Competition Act in the United Kingdom is clearly far more favorable to those who wish to combine antitrust claims into one economically viable claim, than is EU competition law.

On the other hand, it is worth noting that other aspects of competition policy are broadly similar in both jurisdictions. Both allow relatively liberal disclosure. In fact, the High Court in England is working to make this aspect of private enforcement more efficient. In short, the British government, like the European Commission, knows that public enforcement of competition law will not, by itself, eliminate all violations of competition law. Both authorities know they need private enforcement to supplement their efforts, and both have been, and will continue to, encourage private antitrust litigation.