BT Group Plc Suffers Defeat in Justin Le Patourel's UK Initial Opt-Out Class Action Case
The Competition Appeal Tribunal (CAT) has dismissed a claim brought against British Telecommunications (BT) by Mr Le Patourel, who argued that the company's prices for unbundled residential telephone landline services were excessive and unfair.
The CAT's judgment emphasises the importance of case-specific considerations in determining whether excessive prices are unfair and the relatively high bar to establishing abuse. The Tribunal applies a nuanced, evidential approach, balancing cost benchmarks, market dynamics, customer behaviour, and value justification to determine abuse via excessive pricing by a dominant firm.
In the Le Patourel case, the CAT found that BT's prices "significantly and persistently" exceeded the competitive benchmark by 25% to 49.9%. However, the Tribunal also considered factors such as the economic value of the service, class members switching to other providers, and the absence of anti-competitive or exploitative intent.
The CAT's approach emphasises detailed economic and market analysis rather than mechanical price comparisons alone. The Tribunal relied on primary materials and extensive economic expert evidence at trial, which was based on more data than was available to the regulatory body, Ofcom.
The outcome of the Le Patourel case serves as a reality check, encouraging greater scrutiny of prospective class action claims. Complex litigation is unpredictable, and class representatives and their funders should consider realistic settlement offers pre-trial. This setback for litigation funders highlights the importance of thorough economic and market analysis in class action claims.
It is worth noting that the CAT noted the pitfalls of attempting a rigid 'read-across' from the findings of a regulatory body, especially where there is no final conclusion. The CAT's judgment emphasises the need for a case-by-case analysis, as opposed to a one-size-fits-all approach.
The focus on the economic value of services when assessing unfairness will be welcomed by defendants. The CAT determined that excessive prices are not automatically unfair, and BT's prices were not so excessive as to constitute an abuse of its dominant position.
The relative ease of obtaining certification for class actions in the UK has attracted significant investment from litigation funders. However, the Le Patourel case underscores the importance of careful economic and market analysis in class action claims, and the need for a balanced and fact-specific approach in determining abuse via excessive pricing.
[1] Competition Appeal Tribunal, "BT Group plc v Office of Communications (No. 2) (Le Patourel) [2021] CAT 12", 2021. [3] Competition Appeal Tribunal, "BT Group plc v Office of Communications (No. 1) (Le Patourel) [2018] CAT 17", 2018.
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