Richard Pike
Richard is a Partner at Fieldfisher, specialising in antitrust litigation. He has acted for defendants but is usually instructed by claimants, both in standalone and follow-on actions relating to cartels and other forms of competition infringement in the UK and EU. He acts for individual clients and for large groups (whether through the collective action regime or otherwise).
As a litigator, he has many years of experience in the Competition Appeal Tribunal as well as in the High Court. His notable cases include the successful defence of Shell in OFT infringement proceedings brought in relation to tobacco retailing as well as a series of cases for Hutchison. His competition damages experience includes acting for defendants in claims based on the paraffin wax and refrigeration compressors cartels. He has also had some involvement with class actions in the United States, where he studied and was seconded for a year, and in Europe.
Practice Area
Panels
- Consulting Editorial Board
- Contributing Author
Qualified Year
- 2002
Membership
- Competition Law Association
4 Contributions by Richard Pike
PRACTICE NOTES
Access to competition authority materials in private damages actions: disclosure and confidentiality in the English High Court and the CAT, and the impact of the Damages Directive
Private claims in the English courts alleging breaches of competition law often run alongside inquiries by national and/or European competition authorities, even where they are not strictly follow-on from those investigations.
Claimants frequently pursue disclosure of documents and/or information submitted to the competition authorities, or generated by them (‘regulatory material’).
The passage of the Damages Directive, implemented in the UK through The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017, SI 2017/385 (the Regulations), narrowed the opportunities for claimants to obtain regulatory material for use in future damages claims.
What do we mean by ‘regulatory material’?
This section briefly sets out the different kinds of regulatory material that may be sought and how they might be pertinent to a private enforcement action.
Infringement decision
A decision of a UK or pre-Brexit competition authority is binding on a UK court.
Accordingly, it scarcely needs saying that the court and the parties must be able to see any decision reached by an authority so they know which findings bind the court.
It also serves as a roadmap, giving claimants a quick...
Competition
PRACTICE NOTES
Compensatory damages in private competition claims under English law: principles, quantification, passing-on, umbrella pricing, EU Damages Directive, and leading cases
Most private competition claims in England proceed on a tortious footing, commonly pleading breach of statutory duty, and the discussion below centres on tort-based claims. Nonetheless, it should be acknowledged at the outset that English law does, in certain circumstances, allow damages linked to anti-competitive behaviour to be recovered on a non-tortious basis. For example, a contract may stipulate payment of a liquidated amount if a counterparty is found to have committed a relevant infringement of competition law. Indeed, some companies now incorporate such terms within their standard supplier agreements. It is also, of course, possible to seek remedies other than compensatory damages. Brief mention is made below of exemplary damages, which are awarded not to make the claimant whole but to punish the defendant. Likewise, restitutionary damages aim to remove part or all of the benefits obtained by the tortfeasor through the wrong, rather than to recompense the claimant for loss. These additional or alternative remedies are not addressed further below (see further, Damages in tort and negligence claims).
A recap: assessment of compensatory damages in...
Competition
PRACTICE NOTES
Practitioner Guide to Collective Proceedings in the UK Competition Appeal Tribunal: Certification, Opt-in/Opt-out, Class Representation, Damages, Settlements and Funding
Legislative changes effective from 1 October 2015 created a right to collective redress for those affected by anti-competitive behaviour. This includes an opt-out mechanism, enabling an appointed class representative to recover damages for all comparably placed individuals who have not expressly chosen to withdraw. For a general overview of the UK private actions landscape, see UK damages actions...
Overview of the process
The summary below outlines the collective procedure before the Competition Appeal Tribunal (CAT) and highlights key distinctions from litigation in the High Court. Topics addressed include:
sources of authority
how claims are commenced
issue of the collective proceedings order
rights of class members, and
distribution of awards
Sources of authority
The CAT does not directly apply the Civil Procedure Rules (CPR) governing cases in the High Court and County Court. It operates under its own procedural framework, the CAT Rules (the Rules). These are supplemented by the CAT’s Guide to Proceedings, reissued on 1 October 2015 (the Guide). Under the Rules, the Guide has the status of a Practice Direction. The Court of Appeal...
Competition
CHECKLISTS
Private competition claims: pre-action strategy and checklist for standalone and follow-on cases, covering liability, jurisdiction, limitation, evidence and quantification, remedies, collective proceedings, costs and funding
Is there an actionable claim?
Note: private competition claims are predominantly governed by national law, and procedural as well as substantive rules differ markedly across the EU; accordingly, when planning competition litigation, assessments will need to be made for each individual jurisdiction.
Possible causes of action
Assess whether UK competition law has been breached (or EU competition law where the period predates the end of the Brexit transition period).
Determine if the loss arises from an agreement or concerted practice between undertakings, particularly between competitors (see further, The prohibition on restrictive agreements).
Evaluate whether an undertaking that is arguably dominant—typically indicated by a substantial share of a relevant market—caused the loss through abusive conduct contrary to Chapter II of the Competition Act 1998 (and/or Article 102 TFEU if before the end of the Brexit transition period) (see further, The prohibition on abuse of dominance).
Consider whether other national or foreign competition laws have been infringed.
Review the laws of every jurisdiction in which the loss was suffered and where the prospective defendant(s) are based...
Competition
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