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Gutmann (applicant/respondent) v First MTR South Western Trains Ltd (1st respondent/appellant) & ors

Monday 13 (2.00pm) – Wednesday 15 June 2022

3 appeals, firstly by London & South East Railway Ltd (LSER), and further, by separate Appellants Notices filed, First MTR South Western Trains Limited and Stagecoach South Western Trains Limited, appeal, using composite grounds of appeal and skeleton argument, the judgment of the Competition Appeal Tribunal (CAT) dated 19 October 2021, and the CAT’s Consequentials Ruling dated 3 December 2021, following a hearing on 18 November 2021.

First MTR and Stagecoach say (in their composite PTA skeleton argument) that the issues raised are fundamental to the development of the collective action regime, and certification of collective proceedings.

The CAT:

(1) granted Mr Gutmann’s applications in each case for a Collective Proceedings Order (CPO) under s47B of the Competition Act 1998 (subject to one point) and authorised him to act as Class Representative to continue collective proceedings on an opt-out basis claiming damages for loss suffered by the Class Members
(2) dismissed the Defendants’ applications for Reverse summary judgment/ strike out.

LSER asked that the appeals filed by LSER and the Defendants (First MTR and Stagecoach) be heard and managed together.

The cases which have common and almost identical issues concern the practice of train operating companies (the Operators) on the south eastern and south western rail franchises from 1 October 2015 to final judgment.  It is alleged that the Operators in each case abused a dominant position contrary to s18 of the Competition Act 1998 by failing to make so called Boundary Fares sufficiently available and/or ensure general customer awareness of such Fares so that customers holding Transport for London travelcards would only purchase a Boundary Fare to supplement their travelcard for journeys out of London beyond the outer zone covered by their travelcards; rather than paying a full fare.

The damages claimed are said to be in the region of £36 million pounds in the LSER claim and £57 million pounds in the SW claim.

View hearing:

Day 1

Part 1

Day 2

Part 1

Part 2

Day 3

Part 1

Part 2