Clause 16 - Damages
Enterprise Bill
2:45 pm
Mr Jonathan Djanogly (Huntingdon, Conservative)
I beg to move amendment No. 31, in page 8, line 3, at end insert—
'(3A) The Tribunal shall also have the power to grant injunctive relief.'.
I would be interested to know why we are not dealing with clause 15 first, because in some ways it draws into clause 16. I appreciate that the Government want to open up the enforcement of competition law and encourage private actions—we will come to those issues when we discuss clause 15—but the order in which we are considering matters still seems unusual.
The Competition Act 1988 already provides for the right to seek damages in the courts, and clause 16 will provide the extra teeth to competition appeals tribunals, which will also be able to hear damages claims.
Different types of relief—damages and injunctive relief—are available to claimants. The claimant will often be concerned not only to receive compensation in the form of damages for what has happened, but to apply to the court for injunctive relief to prevent it happening again. Insofar as that is relevant to the court process, it is also relevant to the CAT process. If not, the claimant could not achieve both objects through the same legal process. A claimant pursuing damages through the CAT would need a simultaneous court action in process to obtain injunctive relief. That would lead to a costlier and lazier process being heard by two courts that could take different tacks on the same issue.
To the extent that the amendment would simplify the process, I fully support it. However, wider issues are relevant. The Government have changed their mind. The issue was debated during the passage of the 1998 Act and it was decided then that damages should
not fall within the CAT process. Will the Minister explain the Government's changing thought processes? I note that a Library research paper refers to consultations prior to the 1998 Act and sets out the Government's view then:
''We have considered carefully the option of making the Competition Commission, as opposed to the Courts, the forum to hear private law actions for breach of the prohibition such as claims by third parties for damages or interim relief. We have concluded that there are significant drawbacks to such private actions being heard in the tribunal. In practice the application of the prohibition would often be one of many areas of the commercial dispute to resolve which, in turn, could lead to an unnecessary duplication of fact finding as the tribunal heard competition law points and the courts heard other aspects of the same case. Moreover, if the tribunal were to hear such private law actions, this could prejudice its primary objective of providing a quick and efficient review of DGFT decisions. We have therefore decided that such private actions should be heard in the courts.''
We are now dealing with the damages side, so we are diverging from that position only a few years later by placing it into a CAT process, while it has been decided that the injunctive relief element will not be moved into that process. That will complicate rather than simplify matters. Will the Government explain their view?
The concept of injunctive relief is part of the wider debate on the role of the CAT. Competition issues should generally be dealt with by the CAT rather than by a mix of the CAT and the courts. The Government have been lobbied generally and several judges have argued that the CAT should have a wider role than under the Bill. It is in the interests of business that a specialised tribunal, which will act more quickly than the courts, deals with competition. Increasing the ability of the courts to take speedy decisions, making the process more uniform and avoiding duplication should lead the Government to review the amendment carefully.