On 27 October 2022 the Tribunal handed down its ruling following the three ‘permission to appeal’ applications submitted after the Tribunal granted the RHA the first ever ‘opt-in’ CPO.
Whilst the Tribunal has dismissed the vast majority of points raised by UKTC and DAF, the Tribunal has granted permission to appeal on the question of whether there is a conflict of interest between purchasers of new and used trucks such that they cannot both be included in the same collective proceedings.
Briefly, the truck manufacturers say that an operator who buys new trucks will want to argue it could not pass on the overcharge when it sold the vehicle on/part exchanged the vehicle. Conversely, purchasers of used trucks will want to argue that the entire overcharge was passed on to them. The truck manufacturers – for obvious self-serving reasons – say this represents a conflict within the group.
The RHA’s position is and always has been that the extent of overcharge that is apportioned to each operator is a matter for determination by an expert who will have access to a wealth of data in order to provide the most accurate estimation of what actually happened and what the overcharge looks like for each truck type/each operator.
This is the position the Tribunal accepted at the CPO hearing and furthermore, the Tribunal have confirmed that this remains the case i.e. they are confident that their decision is correct. Moreover, the Tribunal highlight that any potential divergence of interest can be dealt with by way of informed consent by operators who have joined the action.
Steven Meyerhoff, Director at Backhouse Jones, said he ‘remains confident the judgment is correct but understands the Tribunal’s approach given this is a new regime and a novel issue not yet tested by the appeal courts under the regime.’
Given the potential impact on the RHA claimant group, the Tribunal has elected to halt proceedings pending this appeal which it suggests should be heard as quickly as possible by the Court of Appeal to minimise delay to access to justice for the in excess of 17,000 operators who are part of the RHA claimant group.
Commenting, Richard Smith, Managing Director said: “Whilst frustrating, the RHA have asked the legal team to liaise with the Court of Appeal and the Tribunal to see how quickly the matter can be heard. The RHA remains committed to bringing this action to a successful conclusion on the industry’s behalf”.
Q&A on the Truck Cartel
Why is this taking so long?
The case is one of the first of its kind. It is the first opt in collective proceedings to have been approved by the Competition Appeal Tribunal and therefore is paving the way for how future claims will be dealt with. The by-product of this is that decisions by the Tribunal will be appealed to the appeal courts in order to test the Tribunal’s judgment and establish the law going forwards. This unfortunately takes time.
What are you doing to speed up the process?
The Tribunal recognises the case has been ongoing for some time and has indicated that the appeal should be heard promptly. The legal team are taking steps to have the matters listed for hearing as soon as possible
This is another delay to me getting a payout – how long will it be before this case is back on?
It is difficult to predict with certainty and this will remain the case as long as the truck manufacturers continue to appeal decisions the Tribunal makes. The RHA and legal team are conscious of the delay and are working hard to move the case forward to conclusion as quickly as possible.
Does the delay mean the action is less likely to proceed?
Not at all. The Tribunal has indicated it remains confident in its decision and the RHA and legal team consider the Tribunals approach correct. We are therefore confident the Court of Appeal will reject the truck manufacturers and UKTC’s arguments.
This delay is frustrating – what can I do?
We appreciate it is frustrating and we are doing all we can to bring the matter to conclusion as quickly as is within the powers of the RHA and legal team. We would ask you to retain your records and bear with the process.