A £2bn claim against some of the world’s biggest truck manufacturers over their involvement in a price-fixing cartel was today given the green light by the Competition Appeal Tribunal, which has granted the first-ever opt-in collective proceedings order in the UK.

The Road Haulage Association (RHA) is bringing an action on behalf of around 18,000 claimants against DAF, Iveco and MAN, three of six manufacturers who were found to have ‘colluded for 14 years on truck pricing and on passing on the costs of compliance with stricter emission rules’.

DAF, Daimler/Mercedes, Iveco and Volvo/Renault were fined a total of €2.9bn (£2.5bn) by the European Commission in 2016 over the operation of the cartel between 1997 and 2011, with MAN being granted immunity – and avoiding a €1.2bn fine – for blowing the whistle.

Fellow manufacturer Scania did not settle and was fined €880m for its role in the cartel. An appeal to the Court of Justice of the European Union is pending.

The RHA brought its claim on an opt-in basis, where claimants must actively sign up to participate, while UK Trucks Claim Limited (UKTC) filed a rival case – against Iveco and Daimler – for an opt-out action, where claimants are included unless they decide otherwise.

The CAT today granted RHA’s application for a collective proceedings order (CPO) on behalf of claimants who bought new ‘medium and heavy trucks’ registered in the UK between 1997 and 2014 and those who bought pre-owned trucks up to 2015.

Tribunal chair Mr Justice Roth ruled that the opt-in claim is ‘not only practicable but the more reasonable and sensible way of proceeding’ and that, where only one class representative should be authorised, ‘in all the circumstances the RHA would be the more suitable’.

UKTC’s objections to the RHA’s funding arrangements, on which both the CAT and the Court of Appeal have previously ruled in the RHA’s favour and in respect of which the Supreme Court recently granted permission to appeal, were also rejected.

RHA will have to pay litigation funder Therium 6% if the total damages awarded, if any, are over £2bn and 8% if they are over £3bn – and as much as 30% if damages are no more than £150m – but the CAT noted that ‘collective proceedings would be impossible without third-party funding’.

‘If the tribunal considers that opt-in proceedings are otherwise preferable in the circumstances of the case, we think it should be slow to reject opt-in proceedings where the funder’s remuneration does not appear unreasonable, only because the funder will be paid in the manner that is inevitable for proceedings of that kind,’ the tribunal ruled.

Steven Meyerhoff, a director at Backhouse Jones which represents the RHA, said the decision is ‘a comprehensive endorsement of a well thought out “opt-in” application and a major step forward for road haulage operators seeking legal redress in respect of losses resulting from the trucks cartel’.

Bruce Kilpatrick, a partner at Addleshaw Goddard which also acts for the RHA, said: ‘This is the first time the CAT has certified an application for a collective proceedings order on an “opt-in” basis and the judgment provides welcome clarity on a number of key issues.’

A spokesperson for Iveco said: ‘Whilst the CAT allowed the claim to proceed, the decision narrowed the scope of the claim against Iveco. This is an early procedural step in the proceedings and involves no finding of liability or that there was any effect on the pricing of trucks whatsoever. This decision may itself be subject to appeal.’

They added: ‘Iveco strongly disputes that the conduct covered by the European Commission decision had any effect on the pricing of its trucks. The European Commission made no finding of harm to any purchasers of Iveco trucks. Iveco will continue to robustly defend itself in litigation but will not otherwise comment as to the detail of ongoing legal proceedings.’

A spokesperson for MAN noted that the CAT ‘narrowed significantly the class definition sought by the RHA’, adding: ‘While potential members joining the class will still need to prove that any damages occurred, MAN has no indication that MAN customers in the United Kingdom may have suffered any damages as a result of the conduct sanctioned by the European Commission.

‘MAN and the other participants to the proceeding may consider to seek permission to appeal the judgment.’

DAF and UKTC have also been approached for comment.

 

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