before the Courts in Luxembourg, and although I have rights of audience as a member of the Irish bar (having taken the bar exams because of Brexit), there is no doubt that Brexit has changed the way competition law is litigated. There are no references from the UK to the CJEU anymore. The CMA now adopts the infringement decision, whereas before Brexit the EU Commission may have taken the lead. Second, the last few years have witnessed a significant increase in class actions (including opt-in but particularly optout). The Supreme Court’s judgment in Merricks lowered the threshold for bringing such collective actions. The CAT now has several collective actions in the pipeline against big tech companies, transport operators and payment card schemes. These will all come to trial in the next few years and may represent a sea change in the way that private litigation is perceived as enforcing competition law. Third, because of the judgments in the Interchange fee litigation, most private claims for damages commenced in the High Court are now transferred to the CAT. Although the High Court retains jurisdiction where the competition law claim is mixed with a non-competition claim (e.g. contractual or a fraud claim), the CAT has effectively become the default forum for determining private law competition law disputes. The CAT is now the specialist forum for hearing all disputes involving competition law: the CAT determines private law claims in addition to exercising its statutory supervisory powers over the CMA. None of these changes present a problem. In this country we have an amazing system set up to determine anti-competitive practices: a robust and specialist competition authority headed up by and advised by some of the best competition lawyers and economists (the CMA), and a tribunal comprised of specialist competition law judges and leading economists (the CAT). We also have a Court of Appeal and a Supreme Court that comprises judges who were, when at the bar, specialist practitioners of competition law. In short, we have competition law expertise throughout the judicial system. What do the next two years have in store for you? The diary for 2023-2024 looks busy! The trucks cartel litigation starts in March 2023. I have trials involving pharmaceutical drugs (abusive pricing and a pay for delay). I am acting for Epic in the forthcoming trial involving Google which concerns the removal of the Fortnite game from the Android phone, and which in turn concerns the restrictions on operating competing app stores and in-app payment solutions. The banking libor litigation continues. In addition, I need to start writing the third edition of the book ‘Competition litigation: UK Practice and Procedure’. This is a cradle-to-grave account of litigating competition law: how to bring a claim, the correct forum, disclosure, summary judgment, remedies, the hearing, costs, appeals etc. Keeping the book up to date is like ‘painting the Forth Bridge’ – an interminable task. But that is what makes it all so interesting! FEATUREOF THEMONTH 17 Contact Mark Brealey KC Monckton Chambers 1 & 2 Raymond Buildings, Gray’s Inn, London WC1R 5NR, UK Tel: +44 02074 057211 Fax: +44 02074 052084 E: mbrealey@monckton.com www.monckton.com About Mark Brealey Mark Brealey is a barrister and a specialist litigator in all aspects of competition law. He regularly appears before the Competition Appeal Tribunal on behalf of companies appealing CMA decisions and has argued points of importance before the Supreme Court and Court of Justice of the European Communities many times. He is also the editor of ‘Competition litigation: UK Practice and Procedure’ and was recognised as The Times Lawyer of the Week beginning 25 June 2020. About Monckton Chambers Monckton Chambers is a leading set of barristers’ chambers with expertise across a broad swathe of civil and commercial law, with particular focuses on EU, competition, commercial litigation and arbitration, VAT and public and administrative law. Being one of the first chambers to move to Gray’s Inn in 1964, Monckton Chambers has a storied history of acting for large corporates, SMEs and private individuals throughout the private sector. There is no doubt that Brexit has changed the way competition law is litigated.
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