Protecting access to redress: Milberg’s response to the Government’s competition reform proposals
Milberg has submitted a detailed response to the Department for Business and Trade’s consultation on potential reforms to opt-out collective proceedings, regulatory appeals and competition enforcement, drawing on its experience of litigating opt-out claims before the Competition Appeal Tribunal (“CAT”).
Milberg’s response to the consultation, “Swifter and Simpler Competition Redress, Regulatory Appeals and Competition Enforcement”, is available here. Milberg supports targeted measures to improve clarity, efficiency and access to justice in the UK collective proceedings regime. Milberg favours incremental reform through CAT guidance, procedural improvements and enhanced case management rather than legislative change in most of the areas, although it supports statutory reform in relation to litigation funding.
Certification: refine, don’t rebuild
The consultation considers a tougher certification stage, with a new “absolute suitability” test and a statutory cost-benefit requirement. Milberg recognises that greater certainty in some areas would be beneficial, including the role of class representatives, but does not consider statutory reform to be necessary.
The existing framework already contains robust safeguards on certification. The regime has matured, and the CAT has demonstrated its willingness to apply rigorous scrutiny, adapting to emerging issues as they arise. The existing safeguards applied at certification are functioning effectively, with recent CAT and Supreme Court decisions already addressing many of the concerns raised. We consider that scrutiny of cases and the regime can continue to evolve through practice directions and case management, rather than legislative intervention.
Litigation Funding: more choice, more certainty
Milberg strongly supports lifting the ban on damages-based agreements, which would increase funding options for class representatives and promote greater competition in the funding market, which is currently heavily reliant on third-party funders. Milberg cautions against fixed caps on funder returns and instead supports the CAT providing an early indication on the reasonableness of funding arrangements. We also support a presumption that funders should receive their return when a settlement or damages award is approved, subject to CAT oversight.
Redress schemes and leniency: independence matters
Milberg supports simplifying CMA redress schemes, but only if they are independent, allow claimants to be represented, and provide adequate compensation that has been properly assessed. Caution must be exercised against reforms that would allow the party that caused harm to control its own redress process and claimants should remain free to pursue litigation if they reject a scheme.
Milberg supports strong cartel enforcement and recognises the importance of maintaining incentives for whistleblowers to cooperate with the CMA. However, any expansion of the leniency framework should strike a balance between encouraging cartel detection and preserving the rights of victims to obtain full redress from participants in a cartel. We therefore oppose proposals that would grant complete immunity from private damages actions to leniency applicants.
Consumer trust and distribution
Several proposals are directed at improving the outcomes for consumers. Milberg favours a central, verified register of claims on the CAT website, combined with stronger Government promotion of distributions. We also consider that take-up rates could be improved through greater use of retailers and third parties to assist with distribution, together with mandatory defendant cooperation where defendants possess customer data necessary for distribution.
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