ICLE Comments to UK Swifter and Simpler Competition Redress Inquiry
I. Introduction and Summary
The International Center for Law & Economics (‘ICLE’) welcomes the opportunity to respond to the Department for Business and Trade’s (‘DBT’) consultation on Swifter and Simpler Competition Redress, Regulatory Appeals and Competition Enforcement.[1] ICLE is a nonprofit, nonpartisan research centre that promotes rigorous economic analysis in public-policy debates. Its scholars have written extensively on competition enforcement, private litigation, and regulatory design. ICLE has also responded to the government’s Refining Our Competition Regime consultation, the Competition and Markets Authority’s (‘CMA’) merger-efficiencies review, and its proposed first conduct requirements under the Digital Markets, Competition and Consumers Act 2024 (‘DMCC Act’).[2]
ICLE submits these comments by email as a single document rather than through the online survey. Headings identify any specific consultation questions addressed in a section. Paragraph references are to the Consultation unless otherwise indicated.
The Consultation’s three chapters share an ambition to make redress, appeals, and enforcement ‘swifter and simpler’. ICLE supports that aim. Speed and simplicity help when they lower the cost of reaching sound outcomes. They can, however, do harm when they remove safeguards needed to reach those outcomes. We therefore assess each proposal through the error-cost framework that has long guided law & economics analysis of enforcement institutions: Does the reform reduce the expected cost of error, including false positives, false negatives, and enforcement costs?[3]
Our principal conclusions follow.
A. Opt-Out Collective Actions (Chapter 1)
The government’s diagnosis is broadly right, and most of its remedies point in the right direction. The regime has two linked problems. First, certification has become too easy, leaving funders’ appetite for returns to filter claims that the Competition Appeal Tribunal (‘CAT’) should assess for merit and proportionality. Seconds, even successful claims have returned very little to the consumers in whose name they are brought
ICLE supports codifying an absolute-suitability test with a weighted cost-benefit assessment (Q4–Q6), clarifying class representatives’ obligations through the CAT Rules (Q1–Q3), permitting damages-based agreements subject to disclosure (Q7–Q9), requiring budgets from both sides (Q13–Q14), and introducing settlement offers with automatic costs consequences (Q18–Q20). We oppose two proposals. Requiring the CAT to indicate at certification what funder return would be ‘reasonable’ (Q10) would import rate-of-return regulation into litigation finance. This risks blending into rate-of-return regulation of litigation finance with the associated cost inflation. It would be neither workable nor wise. Allowing the CMA to order redress based on a presumed overcharge (Q22–Q26) would turn an enforcement agency into an administrative damages tribunal without the experience, evidence, or standard of review that role requires.
B. Regulatory Appeals (Chapter 2)
ICLE supports transferring the CMA’s appellate functions to the CAT (Q44–Q45). Adjudication belongs in a judicial body, and the CMA’s resources are better spent on its primary functions.
That transfer should, however, preserve parties’ right to a meaningful appeal. Applying judicial-review principles ‘taking due account of the merits’ (Q47) would lower the standard that now governs energy appeals and replace water redeterminations with a materially more deferential process. Decisions that set the return on tens of billions of pounds of regulated investment warrant a genuine merits appeal.
C. Streamline Competition Act 1998 Enforcement (Chapter 3)
Several proposals would sensibly reorganise procedures and institutions. Others would remove statutory safeguards and replace them with CMA guidance. Most notably, omitting Rule 3 (Q65) would allow the official who issued a statement of objections to sit in judgment on it.
The proposals would also withdraw the right to make confidentiality representations (Q67), narrow access to the file (Q75, Q77, Q78), and codify appeal waivers in settlement (Q68). Together, these would weaken checks on an agency whose infringement decisions bind courts in follow-on damages actions. ICLE supports faster competition-law procedures, but notes that procedural fairness protects the parties, lends credibility to enforcement decisions, and makes the UK a more attractive place to do business.
II. The Opt-Out Collective Actions Regime
The opt-out regime began in 2015 with three objectives: better redress for victims of anticompetitive conduct, deterrence, and protection for defendants against unmeritorious claims.[4] A decade later, the evidence assembled in the Consultation suggests that the regime is falling short on redress and protection for defendants. It also pursues deterrence in a way that generates large private returns without commensurate public benefit.
The regime has grown rapidly since 2020. Claimants have filed cases with a cumulative estimated value exceeding £130 billion on behalf of some 655 million class members.[5] Claimant budgets routinely exceed £20 million, and defence budgets can be expected to match or exceed them.[6] Funders will not back a claim worth less than roughly £500 million.[7]
Yet in the only case to reach distribution, less than one per cent of the class made a claim. Approximately £216,000 reached consumers, while more than £10 million went to lawyers, funders, and other stakeholders.[8] In the only case to reach a judgment in the claimant’s favour, the Tribunal had to determine what a ‘fair’ commission for access to a digital platform would have been. As ICLE has explained elsewhere, this exercise in administered pricing is unlikely to produce stable or welfare-enhancing results. The judgment is now the subject of an application for permission to appeal.[9]
These outcomes reflect a well-understood divergence between the private and social incentives to litigate.[10] The lawyer or funder who selects and controls a claim captures much of its private return, while society bears the costs of adjudication and any over-deterrence. Research on ‘entrepreneurial litigation’ shows that when those who select claims are paid from the proceeds, they are likely to favour claims that promise returns to themselves over those that benefit the people they represent.[11] Opt-out proceedings sharpen that divergence because class members are dispersed, passive, and often unaware of the claim.
Two features of the UK regime make it especially susceptible to this dynamic. First, since Merricks, certification has been understood as a ‘relative suitability’ test that ‘does not involve a merits test’.[12] Second, because the regime covers only competition law, claimants have pleaded claims ‘not obviously rooted in competition’ as abuses of dominance. In some cases, the Tribunal has observed that the alleged conduct ‘seem[s] not to be competition law infringements at all’.[13]
Together, these features have made the regime increasingly attractive as an asset class for litigation finance rather than a route to redress: a portfolio of large standalone claims certified at a low threshold, whose value to investors depends on a handful settling or succeeding.
We agree with the government that the regime should be neither expanded nor further restricted at this stage.[14] The answer to the ‘dressing up’ problem is to enforce its existing boundaries. At certification, the Tribunal should require a pleaded competition claim with a real prospect of success, rather than accept a competition-law label alone. Cost-benefit analysis should also be undertaken; at the moment, only cost-effectiveness analysis is. This necessarily implies considering the market impact of the claim, including at the certification stage; this omission is the driver of claims which simply incur costs without improving markets (and sometimes harming them). The proposals discussed below would do much to achieve this.
A. Certification (Q4–Q6)
ICLE supports all three proposals in paragraph 29. Together, they would restore the ‘strong process of judicial certification, including a preliminary merits test’ that the government promised when it created the regime and that subsequent case law has eroded.[15]
Intrinsic (absolute) suitability. A relative-suitability test asks whether collective proceedings are preferable to individual proceedings. Because individual claims for small losses are rarely viable, the answer is usually clear, and certification does little to filter claims. An intrinsic test asks whether the claims are fit to be grouped and determined collectively under the Act. It also asks whether collective proceedings offer a reasonable prospect of a just outcome at proportionate cost.[16] Where claimants seek aggregate damages, they must offer a methodology with a realistic prospect of establishing class-wide loss and evidence that the necessary data exist.[17]
Some mature class-action jurisdictions take a similar approach. In the United States, Rule 23 requires a ‘rigorous analysis’ that will ‘frequently … entail some overlap with the merits’.[18] The class plaintiff must also show that damages can be measured on a class-wide basis consistent with its theory of liability.[19]
Greater weight for costs and benefits, including expected take-up. This is, in our view, the Consultation’s most important reform. The error-cost logic is straightforward. Certification imposes immediate and certain costs: defence spending that can match a £20 million claimant budget, years of management distraction, and, critically, settlement pressure largely independent of a claim’s merit.[20] The benefit is uncertain and, on the evidence so far, small: only a fraction of a damages award reaches a fraction of the class.
A test that gives this comparison real weight and counts likely take-up among the benefits would screen out claims most likely to enrich stakeholders while compensating few class members. It would also encourage funders and law firms to design claims and distribution plans around the class rather than headline quantum.
To make the test operational, the CAT Rules should require the proposed class representative (‘PCR’) to file a costed distribution plan and a reasoned estimate of take-up at certification. A projected return to the class disproportionate to projected costs should be a presumptive ground for refusal. The Tribunal’s recent refusal to certify Waterside v Mowi because litigation costs far exceeded the likely benefit and distribution return to consumers shows that the existing Rules permit this reasoning. Codification would make it the norm rather than the exception.[21] Importantly, this should be cost-benefit analysis and not just cost-effectiveness analysis: there should be an assessment of whether the lawsuit will improve market performance, and not just its costs, or this analysis is unduly truncated.
Sufficient evidence for aggregate damages. Aggregate awards make opt-out proceedings viable, but they also make them risky. The Tribunal should distinguish injured from uninjured class members and tie awards to a sound theory of loss so that they reflect the harm class members actually suffered.[22] Rule 79(2)(f) already requires the Tribunal to consider whether claims are suitable for an aggregate award. Under the current approach, though, suitability is only one factor in a broader assessment of ‘all matters it thinks fit’.[23] Suitability for aggregate damages should instead be a condition of certification, supported by credible evidence grounded in the facts of the case.
The government should also address the ‘multiple bites of the cherry’ problem noted in paragraph 61. Repeatedly filing reformulated claims after a refusal imposes costs on defendants and the Tribunal. The Rules should require permission to refile and allow the Tribunal to make payment of the earlier application’s costs a condition of that permission.
The concern that a statutory merits element would generate satellite litigation (¶ 27) is overstated. Parties already contest certification at length. In Evans v Barclays, the Supreme Court held that the weakness of a claim was properly treated as a powerful factor against opt-out certification under Rule 79(3)(a), without requiring a separate merits trial.[24]
B. Class Representatives (Q1–Q3)
ICLE agrees that greater certainty would help in all three areas identified in paragraph 19: funding arrangements, costs specialists, and consultative panels.
The class representative is the only participant in the proceedings whose incentives are meant to align with the class. Yet a funder or law firm typically recruits the representative, who has no financial stake in the outcome and relies on the funder to meet an adverse costs order.[25]
Gutmann v First MTR South Western Trains illustrates the problem. The class representative, a private individual, could not have met costs beyond the £15 million indemnity his funder provided, so the defendants pursued the funder directly.[26] The funder had advanced about £6.58 million of the representative’s own costs—less than half the adverse costs cover it had provided. The solicitors absorbed later budget increases through deferred and contingent fees. When the defendants sought costs above the cap, the funder argued that the lead solicitors should bear the excess. The solicitors, in turn, wrote to the Tribunal to rebut the funder’s account. The representative sat between two parties financing the litigation, each with a contingent interest, without an independent adviser on the dispute. The agency problem identified in the class-action literature is acute.[27]
The Tribunal’s decisions in Riefa and Hammond ask the right questions: Does PCR understand and genuinely negotiate the funding terms? Has the PCR obtained independent costs advice? Is there a way to make informed decisions on settlement?[28]
The CAT Rules should answer those questions, with guidance on what is proportionate for a given claim. Rule 78 should require the PCR to (i) disclose the litigation funding agreement (‘LFA’) to the Tribunal, including provisions on funder control, termination, and payment priority; (ii) confirm that the PCR obtained independent advice on the funding terms; and (iii) explain how the representative will decide questions of settlement and distribution, including through any consultative panel.[29] This would address the concern in paragraph 17 that PCRs might overspend to cover every base. The requirement is informed independence, not a prescribed governance structure.
C. Financing the Claim (Q7–Q14)
Damages-based agreements (Q7–Q9). ICLE cautiously supports lifting the prohibition on damages-based agreements (‘DBAs’) in opt-out proceedings. The economic case rests on competition. When third-party funders paid a multiple of their investment are the only source of finance, they gain substantial pricing power over the claims the regime exists to enable.[30] Allowing lawyers to take a share of recoveries would introduce a competing source of capital and—as the experience in Victoria, Australia suggests—may lower funding costs and improve returns to the class.[31] It would also align lawyers’ incentives more closely with the size of the recovery than hourly billing does.
The government identifies credible risks, but certification safeguards can address them. We recommend three: full disclosure of the DBA to the CAT through the Rule 78 process; approval of the percentage at settlement or judgment based on the sum actually distributed, rather than the headline award (see Section II.D); and CAT approval of ‘stacked’ arrangements in which a funder and law firm each take a return from the same recovery, so that the CAT can assess their combined cost to the class.
Funder returns: rate-of-return analysis of damages (Q10–Q12). The proposal in paragraph 52 responds to a genuine problem. Funders do not know what return the CAT will approve at the end of a claim, and that uncertainty raises the cost of capital.[32] But asking the CAT at certification to indicate a reasonable return and payment order would, in substance, regulate the rate of return on litigation finance, albeit reading on damages. It would bring the well-documented problems of that model into the CAT.
Rate-of-return regulation asks a decision-maker to determine in advance what return on invested capital is ‘reasonable’. Decades of utility regulation reveal three recurring problems.[33] First, the decision-maker cannot obtain all the information needed to set the rate correctly. The appropriate return on a funded claim depends on the funder’s cost of capital, how the claim’s risk relates to the rest of its portfolio, and the likelihood of success. The CAT cannot observe those factors at certification.[34]
Second, fixing a return as a multiple of cost, or damages, gives the regulated party an incentive to inflate its cost base or the damages estimate (e.g., by not settling). In litigation, an ‘approved’ multiple on invested capital or damages would reward spending more rather than litigating better. The Consultation’s evidence that claimant budgets have doubled within months of certification (¶ 60) suggests that this dynamic is already present. Third, an early indication would become an anchor for later decisions. The promised discretion to ‘revisit’ the assessment at the end of the claim (¶ 52) could prove illusory in practice.
A better response has three parts. First, funders should obtain certainty from their agreements and efficient operations so that they are competitive providers of finance, rather than advance CAT approval. If the PCR has disclosed the LFA, negotiated it with independent advice, and shown at certification that it preserves the PCR’s independence, the Rules should provide that the CAT will enforce the agreed return absent fraud, undue influence, or a material change in the claim. Second, DBAs and the transparency measures proposed above would discipline returns through competition. Third, the Rules should address returns that rise with the passage of time and thus reward delay past the next step-up date. They could bar recovery from the class of any increase triggered after a reasonable settlement offer of the kind discussed in Section II.D. That would target the incentive to delay without regulating the rate. Indeed, a regulated return on damages would likely discourage settlement and slow down lawsuits (e.g. by going to trial to extract more damages than settlement would give).
ICLE sees the force of the time-value argument for paying funders when the CAT makes an award or approves a settlement (¶ 53; Q11–Q12), but the proposed presumption raises a concern. If the funder receives its entire return from the gross sum before distribution, no participant retains a financial interest in whether the class receives anything. Gutmann shows how little may otherwise reach class members.[35]
We would support a presumption that the funder recovers its capital and costs on award or approval, while the CAT ties payment of the profit element to distribution. The funder could draw any remaining profit from undistributed funds only after the CAT finds that reasonable distribution efforts were made. This would preserve an incentive to design and carry out distribution effectively. The CAT’s residual discretion (Q12) is welcome but should not be the class’s only protection. Indeed, the major problem has been precisely that the claimant class is already too far back in the queue; further demoting their claims is not the answer here.
Budgets and costs conduct (Q13–Q14). ICLE supports requiring both parties to submit budgets after certification and to notify the CAT of material changes. Transparency on both sides reduces surprises when costs are assessed and helps the CAT exercise its powers under Rule 104.[36]
The Rules should not presume that vigorous defence of a claim worth hundreds of millions of pounds is a ‘scorched earth’ tactic (¶ 61). Costs sanctions should apply equally to both sides, turn on objective conduct—such as applications that fail comprehensively, repeated failure to follow directions, or refiling a refused certification application—and follow an assessment of the record. The cost-benefit test at certification offers the strongest discipline on claimant budgets. A realistic prospect that only meritorious claims will be certified offers the strongest discipline on defendant budgets.
D. ADR, Settlement, and Distribution (Q15–Q21, Q34–Q37)
Mediation (Q15–Q17). ICLE supports allowing the CAT to order mediation after the parties exchange expert reports and to account for an unreasonable refusal when awarding costs. This would align with the approach now taken under the Civil Procedure Rules.[37] At that point, both sides have enough information to value the claim. Mandatory ADR before filing would add costs without resolving disputes, as the government recognises (¶ 71).
Settlement offers with automatic costs consequences (Q18–Q20). ICLE supports extending a Rule 45-type mechanism to collective proceedings. The current asymmetry is striking. A funded PCR faces little downside from refusing a reasonable defendant offer. A defendant that refuses a Calderbank offer faces, at most, a discretionary costs sanction that, as Kent v Apple shows, may never be imposed.[38] Automatic consequences for both sides would create stronger incentives to settle.
Existing CAT approval under Rule 94 addresses the concern that such a mechanism might put undue pressure on PCRs (Q19). The CAT must find a settlement just and reasonable before approving it, so an offer cannot compel acceptance of a bad settlement.[39] The mechanism should otherwise follow Rule 45, with enough time for acceptance to accommodate CAT approval. The approval process itself (Q21) should develop through experience, with a review once the CAT has considered more settlements.
Distribution and undistributed sums (Q34–Q37). Listing certified claims on the CAT website is sensible and inexpensive. But when fees and returns depend on the gross award, no participant has a financial interest in getting money to the class. Evidence from the mature US regime shows that claims rates in consumer class actions are typically in single digits.[40]
The reforms proposed above would create that interest: counting expected take-up in the certification cost-benefit test, requiring a costed distribution plan, and tying payment of funder profit to distribution. Parties could also agree that undistributed sums revert to the defendant, an option the government rightly leaves to them (¶ 129).
Destination of undistributed damages (Q37). Large undistributed sums may show that the parties overstated the claim’s benefit to the class at certification. The CAT should be able to consider that record in later certification decisions involving the same representatives, funders, or firms.
ICLE also strongly advises against designating the Consumers’ Association (Which?), an active class representative and litigant before the CAT.[41] Directing undistributed damages to an organisation that brings collective proceedings creates a perception—and a real risk—of circularity: more certified claims and less distribution would mean more money for that organisation. US experience with cy pres awards to organisations connected to litigants has drawn scrutiny from the Supreme Court.[42] By contrast, the Access to Justice Foundation may have little connection to competition law, but it has no stake in the regime.
E. CMA-Ordered Redress and Presumed Overcharge (Q22–Q27)
ICLE supports simplifying the Redress Scheme Regulations (Q23),[43] allowing the CMA to accept binding redress undertakings when a business volunteers them in a settlement or commitments decision, and making clear that payments under a redress scheme reduce any subsequent damages claim and count at certification (Q24, Q27). These measures would make voluntary redress easier without displacing the adjudication of loss.
We oppose the two proposals that go further: a statutory presumption of overcharge and a power for the CMA to direct a business to establish a redress scheme (Q22, Q25–Q26).
Presumed overcharge. Damages compensate loss actually suffered. The Organisation for Economic Co-operation and Development (OECD) impact-assessment methodology and meta-studies of historical cartels discussed in paragraph 92 can help estimate the aggregate benefits of enforcement across many cases. The issue is to identify the true overcharge, because correcting the overcharge is how the economic harm of principled cases is addressed. The underlying studies report overcharges ranging from zero to well above 50 per cent, so any single default figure will systematically overcompensate some purchasers and undercompensate others.[44] A presumed overcharge will therefore not achieve optimal deterrence.
The Consultation would also apply the presumption to abuse-of-dominance cases, where ‘overcharge’ is often a poor fit because the alleged harm concerns exclusion rather than price. And because the same agency would find the infringement, impose a penalty, and set the presumed sum, the presumption could operate in practice as a second penalty under another name. It would increase deterrence without improving compensation.[45]
Mandatory redress. The government rejected this power in 2013 for reasons that remain relevant: assessing loss lies outside the CMA’s expertise and would divert resources from investigation and enforcement.[46] The CMA’s role has since expanded considerably, while Chapter 3 of the Consultation proposes to reduce safeguards around its infringement decisions (see Section IV below).
Giving the CMA power to order compensation, subject to a standard of review the Consultation does not specify, would place investigation, prosecution, adjudication, penalties, and damages assessment in one administrative body. ICLE warned against that concentration of functions in its response to the January consultation.[47] It would also sit uneasily with the principle that redress should follow from the merits of a claim rather than regulatory direction. If the government wants more redress in follow-on cases, it should make the collective regime fit for purpose through the certification reforms discussed above
F. Leniency and Public Enforcement (Q28–Q33)
Leniency is the most effective cartel-detection tool available to competition authorities. The decline in Type A applications from an average of 21 a year in 2014–16 to eight a year in 2022–24 is a serious warning sign.[48] The economics are well understood: a firm will report its own conduct only if the expected benefit of immunity exceeds the expected cost of exposure. As private damages exposure has grown, the calculation has shifted against reporting.[49] Immunity from penalties offers little to a firm whose main exposure is civil liability.
ICLE therefore supports extending immunity from civil liability to Type A applicants in principle (Q28), subject to two safeguards (Q29–Q30). First, the government should retain the set-aside for unrecoverable damages proposed in paragraph 108 and define it using the Damages Directive’s model. Under that model, the immunity recipient remains liable when victims cannot obtain full compensation from the other infringers.[50]
Second, immunity should depend on continued cooperation with claimants as well as the CMA. The US model, for example, conditions relief from treble and joint-and-several liability on ‘satisfactory cooperation’ with civil plaintiffs.[51] That would make the immunity recipient a source of evidence for claims against the remaining cartel members and help address the concern about compensation. The objection that the recipient ‘escapes’ liability has less force when its report enables the cartel’s detection and makes redress possible (¶ 103).
III. Simplifying the Regulatory Appeals Framework
ICLE supports transferring the CMA’s appellate functions to the CAT and bringing telecoms price-control disputes within its jurisdiction. Consolidation would give these disputes a judicial forum and reduce duplication. The CAT will need the capacity and sectoral expertise to take on the work. The transfer should also preserve meaningful scrutiny of decisions that shape billions of pounds in infrastructure investment. A genuine merits standard, with power to substitute a decision where the correct answer is clear, would allow the CAT to correct errors without unnecessary remittals.
A. Transfer to the Competition Appeal Tribunal (Q44–Q46)
ICLE supports transferring the CMA’s appellate functions to the CAT, converting the remaining reference functions into appeals, and extending the CAT’s jurisdiction to price-control matters in telecoms appeals.
The current allocation assumes that sectoral regulation is best reviewed by a body with deep experience assessing pricing decisions across sectors. The Competition Commission, and later the CMA, built that expertise through decades of price-control appeals and references. But deciding a dispute between a regulator and a regulated firm is a judicial function. The Consultation itself accepts that a judicial body with the right technical expertise ‘would be equally capable of dealing with these issues’ (¶ 166).[52]
The CAT can acquire that sectoral depth by selecting and, where necessary, supplementing its Ordinary Members (Q46). It would thereby gain independence without sacrificing technical competence. Transfer would also free CMA resources: a single large regulatory appeal can absorb the equivalent of two or three market studies (¶ 167). The CAT already hears appeals from the Office of Communications (Ofcom), the Office of Gas and Electricity Markets (Ofgem), the Payment Systems Regulator (PSR), and the Civil Aviation Authority (CAA). Consolidation would improve consistency and help precedent develop across sectors, as the Penrose report recommended five years ago.[53]
Extending the CAT’s jurisdiction to price-control matters in telecoms appeals (Q45) follows the same logic. The CAT currently hears a telecoms appeal but must refer any price-control element to the CMA, then incorporate the CMA’s conclusions into its judgment (¶ 174).[54] Splitting one appeal between a judicial body and an administrative agency adds procedure, lengthens timetables, and divides the reasoning between institutions with different processes. If the CAT can determine price-control appeals in water and energy, as the Consultation proposes, it can do so in telecoms.
The proposed transfer also bears on the CMA’s independent panel. In March, ICLE argued that the panel should not be abolished without introducing merits-based appellate review at the CAT. The panel provided an independent, quasi-judicial layer of decision-making that helped justify deferential judicial review.[55] The Consultation now cites the panel’s impending abolition as a reason to move regulatory appeals out of the CMA (¶ 169). While that is sound, abolishing the panel does not eliminate the need for the functions it performs. The CAT is the right place for regulatory appeals. For merger and market decisions, the same logic points to merits review at the CAT, which the government has yet to propose.
The government should assess the CAT’s staffing needs before the transfer takes effect. Comparing the expected caseload with the pool of people who have the necessary sectoral and financial expertise, and who are eligible and willing to serve as Ordinary Members, would let the CAT build capacity in advance. Without that assessment, the reform could improve the forum while lengthening the queue—undermining the timeliness gains it seeks.
B. The Standard of Review (Q47–Q52)
The Consultation proposes that the CAT decide all regulatory appeals by applying ‘the same principles as would be applied by a court on an application for judicial review, while also taking due account of the merits of the case’. This follows the telecoms model in section 194A of the Communications Act 2003 (¶ 204(a)).[56] For most appeals within scope, it would reduce the intensity of review. Energy licence-modification appeals currently succeed when a decision is wrong on specified grounds, including errors of fact and failure to give appropriate weight to relevant matters. The CMA may substitute its own decision in price-control appeals, while water redeterminations involve a fresh decision on the merits.[57] The proposal would replace those approaches with a review in which the CAT ‘takes [the regulator’s] decision as a starting point’, accords it ‘an appropriate degree of respect’, and asks whether it is ‘materially wrong’ (¶ 202).
The government may argue that the telecoms formula also asks whether a decision is ‘wrong’ (¶ 201), but two differences matter. First, under the existing energy, water, and air regimes, an error of fact, a failure to give appropriate weight to relevant matters, or—in the air regimes—an error in the exercise of discretion can independently justify allowing an appeal. Under section 194A, the CAT considers the merits through the judicial-review grounds of illegality, irrationality, and procedural unfairness. A decision can therefore be wrong without meeting the threshold for intervention.
Second, treating the regulator’s decision as a starting point gives it a degree of deference. An appeal on specified grounds instead requires the reviewing body to form its own view of whether the decision was wrong, giving the regulator’s judgement only the weight the evidence warrants.
Research on regulatory disputes supports that distinction. Despoina Mantzari argues that deference to a regulator’s economic assessment should depend on the relative institutional competence of the regulator and the reviewing body, rather than on the regulator’s expertise alone.[58] The CAT’s own economic and technical expertise supports meaningful scrutiny, even when the regulator’s specialised judgement deserves weight.
ICLE’s concern is with the error costs of a deferential standard. Price controls set the allowed return on tens of billions of pounds of infrastructure investment, and regulatory error runs in both directions. If a regulator sets the cost of capital too low and an appeal cannot correct it, consumers may bear the cost of underinvestment for decades. If it sets the allowed return too high, consumers pay excess returns for a full control period. The Consultation itself acknowledges that the current arrangements ‘can … deter investments in UK markets’ (¶ 199).
From a law & economics perspective, the question is how the review standard allocates the risk of error among regulators, regulated firms, investors, and consumers. A merits standard, combined with the proposed standing for consumer bodies that ICLE supports, would allow errors in either direction to be corrected.
The Consultation’s principal argument for deference is that many elements of a price control, ‘e.g. the cost of capital’, are ‘complex matters requiring the exercise of regulatory judgement with no single right answer’ (¶ 199). That may be true, but a merits appeal can still give the regulator appropriate latitude within a range of defensible values. In the RIIO-2 appeals, the CMA upheld the networks’ challenges to the ‘outperformance wedge’ and, for five of the eight appellants, an innovation uplift unsupported by evidence. It nonetheless dismissed every challenge to the cost of equity.[59]
Fresh redetermination has not simply favoured regulated firms, either. In the PR24 redeterminations, the CMA raised the allowed return from 4.03 to 4.20 per cent but granted the five disputing companies £463 million in additional revenue—17 per cent of the £2.7 billion they sought.[60] A judicial-review standard would do more than respect regulatory judgement: it would leave wrong decisions standing when they fall short of irrationality. The lack of a single right answer strengthens the case for external review because a regulator may struggle to identify its own errors.
The standard also matters to the government’s growth agenda. Water and energy networks must raise substantial private capital over the coming decade, and investors account for the available appellate review when pricing risk. If an erroneous determination of the allowed return can be corrected only when it is ‘materially wrong’ under judicial-review principles, investors may demand a higher risk premium, with consequences for allowed returns and investment.
A merits appeal need not entail unrestricted de novo review. It asks whether the regulator’s decision has evidential support and accords with its statutory duties. It does not require the CAT to take over the regulator’s continuing administrative role. The weight due to a technical assessment will depend on the issue under review.
ICLE therefore recommends a genuine merits appeal set out in statute. A single list of grounds drawn from the existing energy, water, and air regimes should cover error of fact; error of law; failure to consider, or give appropriate weight to, relevant matters; failure to follow the applicable procedure; failure of a modification to achieve its stated effect; and error in the exercise of discretion. The CAT should decide whether the regulator was wrong on those grounds, giving its assessment the weight the evidence warrants.[61] This would largely extend the existing energy standard across sectors. The Consultation offers no evidence that the standard has produced excessive appeals or unmanageable proceedings.
Requiring a notice of appeal to identify whether each ground alleges an error of fact, law, or discretion (Q48) would help focus proceedings, provided a mistaken label does not bar a sound argument. ICLE also agrees with the approach to new evidence (Q49) and cross-examination (Q50) in paragraph 204(c): the CAT should retain discretion under its existing Rules to allow both. Restricting appeals to material available to the regulator could reward opaque reasoning, since an appellant may not know what evidence informed the decision until its publication. The principal barriers the proposals would create (Q52) are thus the review standard and the proposed rule on remedies.
On remedies (Q51), mandatory remittal should not be the default. When the CAT finds an error and the correct answer follows from that finding—for example, a discrete input to a price control—remittal would delay the outcome and invite another appeal. The CAT should be able to substitute its own decision on that point, as the CMA can in energy price-control appeals and as the appeal bodies can in the air and postal regimes (¶ 195).[62] It should remit cases when the regulator needs to exercise fresh judgement in light of the CAT’s findings. Confined in this way, substitution corrects an error without beginning a second round of regulation.
IV. Competition Act Enforcement and Procedural Fairness
ICLE supports faster enforcement, but the CMA’s decisions must remain reliable when they bind courts in follow-on damages claims. The Rules should keep final decision-makers separate from the team that investigated a case, preserve a meaningful chance to protect confidential information and inspect the evidence, and maintain safeguards when the CMA imposes interim measures. Settlement procedures can be simpler, provided they give parties adequate access to the case against them and clearly define the scope of their admissions.
A. The CMA’s Decision-Making Model (Q65–Q66)
Rule 3 of the CMA Rules embodies a simple principle: the officials who decide to issue a statement of objections (‘SO’) should not decide whether those objections are well founded.[63] The Consultation proposes removing Rule 3 and letting the CMA set its decision-making model in guidance. One option is an ‘SRO + 2’ model, in which the senior responsible officer (‘SRO’) who issued the SO would make the final decision alongside two colleagues who had not worked on the case (¶ 229).
Basic procedural fairness weighs against this change. Separating investigative and decision-making functions within an enforcement agency is an important safeguard against confirmation bias: the tendency to interpret new evidence as supporting a theory one has already formed.[64] The concern is not misconduct by CMA officials. Any decision-maker can be influenced by a view formed earlier in a case, and institutional rules should account for that risk.
Critics have long challenged the European Commission’s combination of these functions. The European Court of Human Rights has accepted such an arrangement in an administrative competition authority where a court can fully review its decisions on the facts and the law.[65] The UK’s case-decision-group model was a deliberate improvement on the Commission’s approach.
The consumer-protection regime offers no reason to remove Rule 3. It also separates functions, but the CMA sets that safeguard itself and can revise it. The difference concerns where the rule sits—in CMA guidance or in a statutory instrument. It does not diminish the need for separation. Nor does the SRO’s familiarity with the case outweigh the risk of confirmation bias. Two uninvolved colleagues may give undue weight to the views of the officer who led it.
Three considerations make separation especially important. First, infringement decisions under the Competition Act 1998 bind courts in follow-on damages actions,[66] which now include opt-out collective claims worth hundreds of millions of pounds. The reliability of the underlying decision matters more than it did in 2014. Second, although the CAT hears appeals on the merits, [67] an appeal is costly and slow, and a party that settles waives it. For a meaningful share of decisions, internal separation is the only check. Third, moving the safeguard from the Rules to guidance would let the CMA change it after a consultation it controls, without parliamentary scrutiny.
If the government considers Rule 3 too prescriptive, it should retain the core requirement in the Rules: people who took part in the investigation or decided to issue the SO should not make the final infringement or penalty decision. The CMA could set the decision-makers’ composition and procedures in guidance. The same principle should govern settlements (Q66). A party’s admission does not relieve the CMA of its duty to establish an infringement, and someone outside the case team that negotiated the settlement should make that judgement.
B. Confidentiality, Access to the File, and Interim Measures (Q67, Q71–Q78)
Rule 7 (Q67). Rule 7 should be amended, not omitted. The Consultation may be right that the CMA must process too many blanket confidentiality claims that offer no reasons. It should therefore require parties to identify and explain each claim, and allow the CMA to disclose information without further representations when a claim is unreasoned or manifestly unfounded. Parties should retain the right to make representations on substantiated claims. Competition Act 1998 investigations can uncover trade secrets whose disclosure is irreversible. Even well-resourced authorities have failed to protect such information.[68] A chance to be heard before disclosure is a minimal safeguard.
Confidentiality rings (Q71–Q74). ICLE supports a standardised framework that gives economic as well as legal advisers access to confidentiality rings, so parties need not negotiate the arrangements afresh in every case. This is already the case following Practice Direction 2/2026 and the framework there, which amounts to a rebuttable presumption, seems apt. Predictability would benefit both the CMA and the parties it investigates. Civil sanctions for breaches (Q72) are acceptable in principle if they require fault, are proportionate to the breach, and provide a safe harbour for prompt self-reporting. Employer liability should apply to systemic failures, not automatically to every breach (Q73). Extending the framework to mergers and markets (Q74) is sensible if the same safeguards apply.
Access to the file (Q75–Q77). Aligning the Rule 6(2) exceptions with the consumer-enforcement rules would let the CMA withhold ‘routine correspondence’ and documents ‘to the extent that they identify an individual’ (¶ 253).[69] Neither category defines its own limits. In an abuse-of-dominance investigation, correspondence the CMA regards as routine may matter to the defence. Any new exception should be narrow and require a list of withheld documents, so a party can request specific items.
Disapplying Rule 6 altogether in settlement cases (Q77) is more troubling. A settling party admits an infringement that binds courts in follow-on claims and gives up its right of appeal. It should understand the full case file before doing so, rather than see only the documents the CMA chooses to cite. The CMA could offer streamlined access if the party agrees to it. The Rules should not impose it as the default.
Interim measures (Q78). ICLE opposes removing Rules 13(1) and 13(2). Interim measures are the CMA’s most intrusive tool short of a final decision. They impose binding obligations on the basis of a prima facie case, before any finding of infringement.[70] Removing the right to inspect the file could require a business to change its conduct without seeing the evidence said to justify the direction. A targeted rule could address the efficiency concern: give the business access to documents on which the CMA relies, through a confidentiality ring where needed, within a short, fixed period. The safeguard should remain in the Rules rather than move to guidance.
C. Settlement Procedure (Q68–Q70)
Settlement benefits both sides. It saves CMA resources and gives the settling party a penalty reduction and an earlier end to the investigation. But settlement decisions also affect third parties: they establish binding infringement findings on which follow-on collective claims may rest.
Together, the proposals would allow an infringement decision without an SO (Q69–Q70), full access to the file (Q77), or a right of appeal (Q68). Each proposal reflects existing practice in isolation.[71] In combination, they could produce a decision that no one outside the case team has tested against the full evidence, yet that carries the weight of a binding infringement finding in litigation worth many times the penalty.
ICLE does not object to codifying the agreement not to appeal. The Rules should, however, also make clear that the settling party admits only the facts and infringement set out in the settlement decision, and that follow-on claimants cannot extend that admission. The decision should state that it resulted from a settlement.
When all parties settle before an SO, a summary statement of facts may serve as the section 31 notice if it sets out the CMA’s case with the specificity that section 31 requires and the parties have seen the documents on which it relies. The consumer-enforcement rules should not set the benchmark for this process. The procedural rules should instead reflect the difference between conduct whose illegality is usually clear and conduct whose illegality turns on contested economic analysis.
V. Conclusion
The Consultation is right to seek swifter, simpler competition redress, regulatory appeals, and enforcement. Several proposals would also improve accuracy: certification that tests claims’ merit and proportionality, settlement offers with meaningful consequences, a judicial forum for regulatory appeals, and standardised confidentiality arrangements. ICLE supports these proposals.
Other proposals would sacrifice accuracy for speed. Regulating the rate of damages, allowing the CMA to order redress based on a presumed overcharge, weakening review of regulatory decisions worth tens of billions of pounds, and removing the separation between investigation and decision-making in Competition Act 1998 cases would concentrate discretion while weakening checks on it. These proposals draw on the DMCC Act’s consumer-enforcement provisions, which address a narrower set of issues and remain largely untested. Their effects should be understood before they become a model for more complex and contested cases.
The reforms most likely to meet the government’s aims will align private incentives with public purposes: claims brought on their merits, funders rewarded when consumers receive compensation, and binding enforcement decisions reached through fair procedures.
[1] Dep’t for Bus. & Trade, Swifter and Simpler Competition Redress, Regulatory Appeals and Competition Enforcement (17 July 2026) [hereinafter Consultation].
[2] Geoffrey A. Manne et al., Refining Our Competition Regime: ICLE Response to the Department for Business and Trade Consultation Published 20 January 2026 (Int’l Ctr. for L. & Econ., 31 March 2026) [hereinafter ICLE Refining Comments]; Dirk Auer, Selcukhan Ünekbas & Mario A. Zúñiga, Comments of the International Center for Law & Economics: UK Competition and Markets Authority Call for Evidence for Merger Efficiencies Review (Int’l Ctr. for L. & Econ., 25 February 2026); Geoffrey A. Manne et al., Comments of the International Center for Law & Economics: The CMA’s Proposed Steering Conduct Requirements for Apple and Google (Int’l Ctr. for L. & Econ., 28 July 2026) [hereinafter ICLE Steering Comments].
[3] See Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984); Geoffrey A. Manne & Joshua D. Wright, Innovation and the Limits of Antitrust, 6 J. Competition L. & Econ. 153 (2010).
[4] Consultation, supra note 1, ¶ 1.
[5] Id. ¶ 38 (citing CMS, European Class Action Report 2025, at 14, 36 (2025)).
[6] Consultation, supra note 1, ¶ 34.
[7] Id. ¶ 38.
[8] Id. ¶¶ 29, 116 (discussing Gutmann v First MTR South Western Trains Ltd [2025] CAT 72).
[9] Dr Rachael Kent v Apple Inc [2025] CAT 67 (application for permission to appeal pending); see ICLE Steering Comments, supra note 2, at 11 (discussing the Tribunal’s difficulty in determining a fee justified by the value provided).
[10] Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. Legal Stud. 575 (1997); see also William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. Legal Stud. 1 (1975).
[11] John C. Coffee, Jr., Understanding the Plaintiff’s Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 Colum. L. Rev. 669 (1986); Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs’ Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 U. Chi. L. Rev. 1 (1991); John C. Coffee, Jr., Entrepreneurial Litigation: Its Rise, Fall, and Future (2015).
[12] Merricks v Mastercard Inc [2020] UKSC 51, ¶¶ 59, 70, 74.
[13] Consultation, supra note 1, ¶ 7 (quoting Gormsen v Meta Platforms, Inc [2023] CAT 10, ¶ 30(1)); see also Gutmann v First MTR South Western Trains Ltd [2025] CAT 79 (holding that ‘[c]ompetition law is not a general law of consumer protection’).
[14] Consultation, supra note 1, ¶ 10.
[15] Dep’t for Bus., Innovation & Skills, Private Actions in Competition Law: A Consultation on Options for Reform—Government Response ¶ 5.55 (January 2013) [hereinafter 2013 Government Response]; Consultation, supra note 1, ¶ 21.
[16] Merricks v Mastercard Inc [2020] UKSC 51, ¶¶ 117–119.
[17] Id. ¶¶ 120–123.
[18] Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011).
[19] Comcast Corp. v. Behrend, 569 U.S. 27, 34–35 (2013); see also In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008) (requiring courts to resolve factual disputes relevant to certification, even when they overlap with the merits).
[20] See In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298–1300 (7th Cir. 1995) (Posner, J.) (describing the ‘intense pressure to settle’ that certification imposes even on defendants with strong defences); Merricks v Mastercard Inc [2020] UKSC 51, ¶¶ 118, 154, https://supremecourt.uk/uploads/uksc_2019_0118_judgment_6dd114686b.pdf (Lord Sales & Lord Leggatt, separate judgment) (noting that collective actions ‘confer substantial legal advantages on claimants and burdens on defendants which are capable of being exploited opportunistically’).
[21] Waterside Class Ltd v Mowi ASA [2026] CAT 32; Consultation, supra note 1, ¶ 29 & n.15; see also Competition Appeal Tribunal Rules 2015, SI 2015/1648, r. 79(1)–(2) (UK), https://www.legislation.gov.uk/uksi/2015/1648/article/79.
[22] See Comcast Corp. v. Behrend, 569 U.S. 27, 35–38 (2013).
[23] See Merricks v Mastercard Inc [2020] UKSC 51, ¶ 61 (‘The listed factors are not separate suitability hurdles, each of which the applicant for a CPO must surmount.’), https://supremecourt.uk/uploads/uksc_2019_0118_judgment_6dd114686b.pdf.
[24] Evans v Barclays [2025] UKSC 48.
[25] See Gutmann v First MTR South Western Trains Ltd [2025] CAT 21.
[26] Id.
[27] See Coffee, Understanding the Plaintiff’s Attorney, supra note 11; Macey & Miller, The Plaintiffs’ Attorney’s Role, supra note 11.
[28] Riefa v Apple Inc [2025] CAT 5, ¶¶ 89(5), 95, 114; Hammond v Amazon.com, Inc. [2025] CAT 42, ¶¶ 56, 67(1), 156(1).
[29] Competition Appeal Tribunal Rules 2015, SI 2015/1648, r. 78 (UK).
[30] See Jonathan T. Molot, Litigation Finance: A Market Solution to a Procedural Problem, 99 Geo. L.J. 65 (2010).
[31] Consultation, supra note 1, ¶ 42 (citing evidence from Victoria, Australia, after the introduction of group costs orders under s. 33ZDA of the Supreme Court Act 1986 (Vic.)).
[32] Consultation, supra note 1, ¶¶ 46–51 (discussing Merricks v Mastercard Inc [2025] CAT 28, ¶ 188; Gutmann v Apple Inc [2024] CAT 18, ¶ 38; and Gutmann v Apple Inc [2025] EWCA Civ 459, ¶ 78).
[33] See 1 Alfred E. Kahn, The Economics of Regulation: Principles and Institutions ch. 2 (1988); Harvey Averch & Leland L. Johnson, Behavior of the Firm Under Regulatory Constraint, 52 Am. Econ. Rev. 1052 (1962); Jean-Jacques Laffont & Jean Tirole, A Theory of Incentives in Procurement and Regulation (1993).
[34] See Friedrich A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519 (1945).
[35] See Gutmann v First MTR South Western Trains Ltd [2025] CAT 21.
[36] Competition Appeal Tribunal Rules 2015, SI 2015/1648, r. 104 (UK).
[37] See Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416; Consultation, supra note 1, ¶¶ 74–76.
[38] Consultation, supra note 1, ¶¶ 78–80.
[39] Competition Appeal Tribunal Rules 2015, SI 2015/1648, r. 94 (UK).
[40] Fed. Trade Comm’n, Consumers and Class Actions: A Retrospective and Analysis of Settlement Campaigns 11–13 (September 2019) (finding a median claims rate of 9 per cent and a weighted mean of 4 per cent across the settlements studied); see also Consultation, supra note 1, ¶ 122 (noting that take-up in North America ‘will not often exceed ~10 per cent’).
[41] Consultation, supra note 1, ¶ 127.
[42] Marek v. Lane, 571 U.S. 1003 (2013) (Roberts, C.J., statement respecting denial of certiorari); Frank v. Gaos, 139 S. Ct. 1041 (2019) (per curiam); Martin H. Redish, Peter Julian & Samantha Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617 (2010).
[43] Competition Act 1998 (Redress Scheme) Regulations 2015, SI 2015/1587 (UK).
[44] See Oxera, Quantifying Antitrust Damages: Towards Non-Binding Guidance for Courts (December 2009) (study for the European Commission finding wide variation in estimated cartel overcharges); John M. Connor & Robert H. Lande, Cartel Overcharges and Optimal Cartel Fines, in 3 Issues in Competition Law and Policy 2203 (ABA Section of Antitrust Law 2008).
[45] See Wouter P.J. Wils, The Relationship Between Public Antitrust Enforcement and Private Actions for Damages, 32 World Competition 3 (2009).
[46] 2013 Government Response, supra note 15, ¶ 6.36; Consultation, supra note 1, ¶ 89.
[47] ICLE Refining Comments, supra note 2, at 5–8.
[48] Consultation, supra note 1, ¶¶ 103–104; see also Organisation for Economic Co-operation and Development (OECD), The Future of Effective Leniency Programmes: Advancing Detection and Deterrence of Cartels (2023).
[49] See Massimo Motta & Michele Polo, Leniency Programs and Cartel Prosecution, 21 Int’l J. Indus. Org. 347 (2003); Giancarlo Spagnolo, Leniency and Whistleblowers in Antitrust, in Handbook of Antitrust Economics (Paolo Buccirossi ed., 2008).
[50] Directive 2014/104/EU, art. 11(4), 2014 O.J. (L 349) 1.
[51] Antitrust Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. No. 108-237, § 213, 118 Stat. 661, 666–67 (2004).
[52] See OECD, Recommendation of the Council on Transparency and Procedural Fairness in Competition Law Enforcement, OECD/LEGAL/0465 (2021) (calling for review by an impartial, independent adjudicative body).
[53] John Penrose MP, Power to the People: Independent Report on Competition Policy 18 (February 2021); Consultation, supra note 1, ¶¶ 152 n.62, 171.
[54] Communications Act 2003, c. 21, § 193 (UK).
[55] ICLE Refining Comments, supra note 2, at 5–8.
[56] Communications Act 2003, c. 21, § 194A(2) (UK); TalkTalk Telecom Group PLC v Office of Communications [2020] CAT 8, ¶¶ 137–140 (5 March 2020).
[57] Consultation, supra note 1, ¶¶ 192, 195 (table); see Gas Act 1986, c. 44, §§ 23D–23E (UK); Electricity Act 1989, c. 29, §§ 11E–11F (UK).
[58] Despoina Mantzari, Economic Evidence in Regulatory Disputes: Revisiting the Court-Regulatory Agency Relationship in the US and the UK, 36 Oxford J. Legal Stud. 565 (2016).
[59] Competition & Mkts. Auth., Energy Licence Modification Appeals 2021: Summary of Final Determination (28 October 2021) (upholding challenges concerning the outperformance wedge and the innovation-related ongoing-efficiency uplift, while rejecting challenges concerning the cost of equity).
[60] Competition & Mkts. Auth., Water PR24 References: Final Determinations—Summary (10 March 2026) (following an 18 March 2025 reference, raising the allowed return from 4.03 to 4.20 per cent and allowing £463 million in additional revenue, 17 per cent of the £2.7 billion sought).
[61] See Consultation, supra note 1, ¶ 195 (table); Gas Act 1986, c. 44, § 23D(4) (UK); Electricity Act 1989, c. 29, § 11E(4) (UK); Water Industry Act 1991, c. 56, § 12F(4) (UK); Transport Act 2000, c. 38, § 19B (UK); Civil Aviation Act 2012, c. 19, § 26 (UK).
[62] Consultation, supra note 1, ¶ 195 (table) (identifying substitution powers in energy price-control, air traffic and airport licence, and postal price-control appeals); Gas Act 1986, c. 44, § 23E (UK); Postal Services Act 2011, c. 5, § 59 (UK).
[63] Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014, SI 2014/458, sch., r. 3 (UK), https://www.legislation.gov.uk/uksi/2014/458/pdfs/uksi_20140458_en.pdf.
[64] See Ian S. Forrester, Due Process in EC Competition Cases: A Distinguished Institution with Flawed Procedures, 34 Eur. L. Rev. 817 (2009).
[65] A. Menarini Diagnostics S.r.l. v. Italy, App. No. 43509/08, ¶¶ 57–67 (Eur. Ct. H.R. 27 September 2011).
[66] Competition Act 1998, c. 41, § 58A (UK).
[67] Competition Act 1998, c. 41, sch. 8, ¶ 3 (UK).
[68] See ICLE Refining Comments, supra note 2, at 13–14 (discussing the inadvertent public disclosure of confidential Microsoft materials in the Microsoft/Activision proceedings).
[69] Competition & Mkts. Auth., Direct Consumer Enforcement Rules r. 5 (CMA201, April 2025).
[70] Competition Act 1998, c. 41, § 35 (UK).
[71] Competition & Mkts. Auth., Guidance on the CMA’s Investigation Procedures in Competition Act 1998 Cases ch. 14 (CMA8, December 2024).