Bulk Mail Class Action Certified

The Competition Appeal Tribunal has issued its judgment granting Bulk Mail Claim Limited (“BMCL”) a Collective Proceedings Order, clearing the way for BMCL to bring claims for damages on behalf of retail bulk mail customers, a class of different sized businesses and other organisations such as public bodies, and charities that send high volume mailings to addresses in the UK.

Retail customers purchase bulk mail retail services from Royal Mail and “access operators” in the “bulk mail retail services market”. Access operators typically collect bulk mail and carry out an initial sortation, before passing that mail on to Royal Mail for physical delivery. Royal Mail is overwhelmingly dominant on the relevant end-delivery market, which accounts for the largest proportion of the cost of sending bulk mail. Following an investigation, Ofcom found in a decision issued in 2018 that Royal Mail had abused its dominant position in 2014 by proposing to introduce discriminatory pricing for bulk mail delivery, which was designed to exclude Whistl, a major access operator, from the end-delivery market and to protect Royal Mail’s monopoly position.  BMCL claims that in the absence of Royal Mail’s conduct bulk mail retail customers would have benefited from lower prices as a result of competition in the end-delivery market.  The CPO Notice which BMCL is required to publish by the Tribunal states that damages are currently estimated in the region of £1 billion. Whistl recently settled its claim against Royal Mail.

In its Judgment, the Tribunal dismissed Royal Mail’s two objections to certification (in relation to BMCL’s expert methodology for estimating damages) principally on the basis that these were matters for trial. Although Royal Mail did not advance a positive case that BMCL via its sole director, Robin Aaronson, was not suitable to be authorised to bring the claim, the Judgment shows the care the Tribunal takes of its own initiative to ensure that a class representative is a suitable person and has appropriate arrangements in place to advance the claims of the class members. In particular, the Tribunal requested a range of information from BMCL (including, a letter setting out how the claim had arisen and details as to the costs budget), and, in light of the unusual composition of the class, requested that BMCL establish a ‘customer user group’ so that larger class members could offer their input to BMCL.

Bulk Mail Claim Limited was represented by Paul Harris K.C., Ben Rayment, Will Perry and Reuben Andrews instructed by Lewis Silkin LLP.

A copy of the certification Judgment can be found here.