The UK’s Competition Appeal Tribunal: Change at the Top, and a New Practice Direction on Witness Statements
The United Kingdom Competition Appeal Tribunal (the “CAT”) is charting a new direction in both leadership and witnesses.
The CAT has announced that Sir Marcus Smith has replaced Mr Justice Roth as its President.
As a barrister, Sir Marcus specialised in regulatory law. In 2009, he was appointed as a Chairman of the CAT, which hears appeals of various regulators’ decisions – specifically sectoral regulators with competition law jurisdiction (listed at §2.1 here) – as well as those of the pan-sectoral Competition & Markets Authority. In 2017, he became a High Court Judge and, in 2018, he delivered the judgment in the landmark case of BritNed v ABB, the first private damages action against a cartel to reach judgment in the UK.
Mr. Justice Roth will now return full time to the Chancery Division of the High Court.
New Practice Direction
Separately, there is a new Practice Direction (2/2021) for witness statements in CAT proceedings.
It is very similar to Practice Direction 57AC of the Civil Procedure Rules, which introduced a new regime for witness statements in the Business & Property Courts.
As of 8 November 2021, witness statements for trials and appeals (but not other hearings) in the CAT should, as far as possible, be in the witness’s own words, and must list any documents the witness has reviewed for the purpose of providing the statement.
Practice Direction 2/2021 emphasises that a statement should only cover relevant facts of which the witness has personal knowledge, and which the witness could be asked/allowed to cover if giving oral evidence. This, plus the “own words” requirement, seeks to steer lawyers away from what has become an increasingly common practice of their drafting statements themselves to create a single narrative that conveniently stitches together the story told by the documentary evidence.
Given the “own words” requirement, those who do not speak English should draft the statement in a language in which they are fluent (regardless of the lawyer’s fluency), from which it should be translated.
Compliance with the above points is underscored by the requirement that the statement include the following confirmation, which is exactly the same as that required by Practice Direction 57AC:
I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge.
I understand that it is not my function to argue the case, either generally or on particular points, or to take the Tribunal through the documents in the case.
This witness statement sets out only my personal knowledge and recollection, in my own words.
On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when.
I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.
Practice Direction 2/2021 also requires that the legal representative of the party calling the witness endorse the statement with a Certificate of Compliance which is the same as that required by Practice Direction 57AC (mutatis mutandis):
I hereby certify that:
- I am the relevant legal representative within the meaning of Practice Direction 2/2021.
- I am satisfied that the purpose and proper content of trial/appeal witness statements, and proper practice in relation to their preparation, including the witness confirmation required by paragraph 4.1 of Practice Direction 2/2021, have been discussed with and explained to [name of witness].
- I believe this trial/appeal witness statement complies with Practice Direction 2/2021 and paragraphs 7.58-7.62 of the Tribunal Guide.
If a party fails to comply with the Practice Direction, the CAT may:
- refuse to give permission to rely on the statement;
- order the redrafting of the statement;
- make a costs order against the non-complying party; and/or
- order the witness to give oral evidence.
The new rules do not apply to Collective Proceedings – i.e. the CAT’s opt-in/opt-out class actions regime – unless the CAT orders otherwise. Conversely, the CAT can disapply the rules to proceedings in which they would otherwise apply.
Written by Stephen Critchley
Edited by Gary J. Malone