
Daniel Carall-Green and Christopher Monaghan, led by Mark Brealey KC of Monckton Chambers and instructed by Geradin Partners, represented Prof Andreas Stephan in his carriage dispute with the British Independent Retailers’ Association, in which Prof Stephan was successful. Hannah Bernstein (Fountain Court) and Kieron Beal KC of Blackstone Chambers also acted for Prof Stephan before the carriage hearing.
Prof Stephan is seeking a collective proceedings order in the Competition Appeal Tribunal (i.e., an order allowing him to bring a class action) against Amazon. Prof Stephan alleges that Amazon has abused its dominance in five distinct ways, and that sellers have, as a result (i) made fewer sales, (ii) paid higher prices for logistics, and (iii) paid higher e-commerce marketplace fees. The value of Prof Stephan’s case is estimated at over £2.6 billion.
Prof Stephan and BIRA both issued applications for collective proceedings orders at around the same time. Given the overlapping nature of the claims, this gave rise to a carriage dispute—i.e., the Tribunal had to determine which case should be allowed to continue.
As the Tribunal noted in its judgment, carriage disputes are a relatively new phenomenon in the UK. The Tribunal’s decision provides significant guidance about the relative assessment that needs to be undertaken when determining a carriage dispute. In particular, the Tribunal identified a number of relevant factors that will be considered, including (i) the scope of the two proposed classes, (ii) the suitability of the proposed class representatives, (iii) the suitability of the two legal teams, (iv) the level of funding and adverse costs cover that each proposed class representative had secured, (v) the litigation plans, (vi) the scope of the two proposed cases, and (vii) the methodologies proposed by the relevant experts.
Significantly, the Tribunal in this case considered case law from Canada, which suggests that “capturing more viable claims”, i.e., formulating a broader case, can be “more consistent with the goals of access to justice”. There was a “major and significant difference” between Prof Stephan’s case and BIRA’s, Prof Stephan’s being framed more broadly. BIRA’s allegations were narrower, and were encompassed within Prof Stephan’s. Therefore, although Prof Stephan’s case would be more complicated, it was better suited to achieving maximum recovery on behalf of the class.
The Tribunal also rejected BIRA’s argument that there was a conflict of interest within Prof Stephan’s class and provided useful guidance concerning the approach to class conflicts at this stage of proceedings.
The Tribunal also commented on the importance of the expert methodology (by which proposed class representatives are required to explain how they will prove their cases at trial). The Tribunal concluded that the methodology advanced by Prof Stephan’s expert was “an impressively well-developed and thought through methodology”.
The Tribunal therefore decided that Prof Stephan’s case was the more suitable to go forward to the certification stage.
The full judgment can be found here.