Competition law has featured prominently in the news, legislative agendas, and policy discussions in the past year, as lawmakers and regulators respond to a range of modern challenges through the use of traditional enforcement tools (such as merger control) and through more innovative means of oversight (such as the new digital markets regime). For a number of reasons, competition litigation has flourished and we expect that it will continue to do so in 2025.
The stakes are high when it comes to complying with this quickly developing regime. The financial and other consequences of regulatory enforcement mean that complex disputes between government and business are prominent. Private competition litigation has also grown, partly due to the growth of group actions in the UK and as the claimant/pursuer-friendly regime set out in the Consumer Rights Act 2015 starts to bear fruit. Merricks v Mastercard confirmed that the door is open to litigation being pursued by millions of people despite the complex legal and economic challenges posed by large and diverse claimant classes. Meanwhile, last year the Competition Appeal Tribunal (CAT) authorised its first settlement in opt-out collective proceedings - it is a precondition for approval that a proposed settlement is 'just and reasonable', and while we are yet to see how decisions will be taken on settlements in more complex settings with groups of claimants, it is a sign of things to come.
Where does Scotland fit into this trend? The Competition Act 1998 applies UK-wide, and so while the gravitational pull of competition litigation is naturally towards London, we expect to see significant growth in the volume and value of competition cases with a Scottish dimension. This could be because the litigation is conducted in Scotland, or because the cross-border nature of the dispute means that Scots law and procedure is otherwise important to the conduct of the case.
Choice of forum is an important question for claimants. While Scottish pursuers may wish to raise proceedings in the Court of Session for strategic reasons, it is also open to parties to seek to transfer proceedings to the CAT. That procedure has now been followed in the Trucks cartel litigation. Procedural distinctions between Scotland and England may inform decisions about choice of forum - for example, in Scotland there is no requirement for defenders to proactively disclose relevant material as in England, meaning that pursuers have to devote more energy to recover relevant information. On the issue of public enforcement, when a decision of a public body is challenged by way of judicial review, it is important to note the differences between the substantive law of judicial review in Scotland and England, including the grounds on which a challenge can be raised.
More broadly, there are other substantive and procedural considerations which may impact on Scottish competition cases.
Time-bar is an important consideration. The Scots law of prescription applies to claims brought under the 1998 Act and applies a time-bar period of five years (as opposed to six years in England). More fundamentally, the expiry of the prescriptive period in Scotland extinguishes any obligation to pay damages for wrongdoing as a matter of substantive law, which is a critical consideration for English lawyers to be aware of when advising clients on competition issues.
The way in which privilege operates on either side of the border is also a consideration worth bearing in mind where choice of forum is in play. Although the law on legal professional privilege has broadly developed in the same direction, recent cases in Scotland (such as Roche Diagnostics v Greater Glasgow Health Board & Another) have highlighted conceptual differences behind the principle in Scotland and England. In the same case, real practical differences are highlighted by the court where the application of without prejudice privilege is concerned. In addition to the practical challenges that arise, it is reasonable to expect that unanswered questions on privilege and waiver may arise in competition cases given the role of group proceedings, cases involving numerous parties and parallel actions across the border.
These are just a few of the Scottish specific issues which we see as being relevant to competition litigation in 2025. In the meantime, lawyers in Scotland (just as in England) will have to grapple with many of the same issues including the tougher consumer protection laws coming into force in 2025 following the introduction of the Digital Markets, Competition and Consumers Act 2024 and the stronger enforcement powers vesting in the CMA as a result.
This article is part of our Litigation in Scotland Report 2025. To explore more cases, you can access the full report here.
