Competition law is a fairly unique area in English law where opt-out class actions are allowed in principle but none have yet proceeded.
Competition law protects the process of competition in free markets across the whole economy; it prohibits cartels, the abuse of monopoly power and regulates mergers. EU law is the application of the law made by the EU within the UK.
Cases in EU & competition law: relief and damages
EU and competition cases generally fall into two categories: appeals against regulatory decisions (such as fines or decisions prohibiting mergers), where barristers act either for the business or for the regulator, and civil litigation in which a cartelist or dominant company is being sued by its customers for damages or by its competitors seeking an injunction.
The cases can either be quite small or very big. At one extreme you get a party seeking an interim injunction; it can be a matter of days between the dispute arising and going to court and cases often settle after interim relief is granted or refused. At the other extreme are actions for damages against cartels, where people have been overcharged for a number of years, involving many claimants and defendants. These cases are extremely high value (into the hundreds of millions of pounds) and can take years to come to trial due to complex jurisdictional and interlocutory issues and overlap with ongoing regulatory investigations. For example, I have one case that started in 2011 and will probably still be going in 2020. Courts are also starting ‘fast-track competition trials’; the first was held last year (Socrates Training Limited v. The Law Society) and took about eight months from start to trial.
Case length in this area of legal practice
Regulatory appeals and damages actions are mostly heard in the competition appeal tribunal. However, damages actions are also allocated to the Chancery Division of the High Court and the Commercial Court. Barristers in this area may typically have between five and ten cases on the go at one time. Court work is very lumpy; you may be in a big trial every day for four weeks followed by a couple of months where you’re not in court at all.
Achieving a good work/life balance can be challenging because this area involves juggling a number of longrunning cases with large numbers of parties, which means hearings may be listed or deadlines set without regard for an individual’s availability.
I enjoy the challenge of blending law and economics. Unlike other areas, competition law involves learning how a particular type of business works – not just looking at specific narrow legal issues – and can involve any sector of the economy. Classic carteltype cases are also exciting as they involve forensic examination of evidence to prove wrongdoing.
An example of a recent landmark case is Mastercard, where the competition tribunal refused to give class action certification to an action on behalf of consumers against Mastercard. This is particularly interesting because competition law is a fairly unique area in English law where opt-out class actions are allowed in principle but none have yet proceeded.
How recession-proof is EU & competition law?
Competition law is fairly recession-proof as it is largely driven by the activity of regulators and their decisions to fine companies. You can see more small cases on the private side during recession; there was a big flurry in 2008–2010 where struggling companies were trying to use competition law to get out of contracts.
What sort of work do pupils practising EU & competition law do?
Pupils work fairly regular hours of around 9.00 am to 6.00 pm with some rare exceptions. We try to manage their workload so that they’re not working through the night but this does change quite sharply after pupillage.
Pupils do all the paperwork and preparation for court: drafting statements of case, advices and skeleton arguments. They also help with speaking and cross-examination notes. After the tenancy decision, they start taking paid work from clients.
To find out how Brexit might affect this area of practice, follow this link.
Types of law practised
- Economic torts.
- Intellectual property.
- Private international law.
- In principle, any area of law can come up.
Good European/ competition barristers have...
- Analytical brainpower.
- The ability to synthesise complex details and then boil them down without losing the gist of the argument.
- The ability to stay calm under pressure.
- Excellent planning skills.
PHILIP WOOLFE is a barrister at MONCKTON. He studied history at Cambridge and law at Oxford, graduating in 2003. He was called to the bar in 2004.