Does Private Enforcement of UK Competition Law Provide an Effective Deterrent to Anti-Competitive Behaviour?

Abstract

This paper explores fundamental changes to the UK’s competition law private actions landscape. It examines how the Consumer Rights Act 2015 (‘CRA’) has paved the way for private enforcement to become an effective deterrent against anti-competitive behavior. These changes have been made possible primarily through amendments to the Competition Act 1998 (‘CA98’) and the Enterprise Act 2002 (‘EA02’). This has led to a metamorphosis of the Competition Appeal Tribunal (‘CAT’) from a court of limited jurisdiction to one of full jurisdiction in competition matters. To that end, this paper will compare private enforcement actions before, and after, these changes. Still, this begs the salient question: what relevance do these changes have on the legal professional practice? The UK’s leading competition authority — the Competition and Markets Authority (‘CMA’) — lends an answer to this significant question. CMA’s prioritization principles demonstrate that private litigants are, under certain circumstances, better served through private enforcement of competition laws. Accordingly, it is this focus that this paper intends to explore. It will conclude that the role of, and need for, alternative litigation forums and schemes operating alongside traditional court systems has never been greater. This is particularly critical for individuals and Small and Medium Enterprises (‘SMEs’) who traditionally relied on public enforcement of competition laws. However, given the increasing challenges, including limited resources, plaguing those tasked with publicly enforcing competition laws coupled with the need to ensure fair access and use of the market by all players, these alternative forums and schemes are gaining traction. This paper concludes that the overall effect of having these private enforcement mediums will likely lead to a reduction in anti-competitive behavior.