The fallout from the PACCAR decision reached the House of Lords on Tuesday 5 December. We can draw two preliminary conclusions from the closing speech of the Minister Viscount Camrose (the relevant section appears near the beginning of column 1453 of the Lords Hansard):
- That the government recognises that its proposed amendment to the Digital Markets, Competition and Consumers Bill (DMCC), to effectively permit enforceable litigation funding agreements (LFAs) in the Competition Appeal Tribunal (CAT), does nothing in relation to funded cases outside the CAT; and
- That the government is considering addressing the impact of PACCAR outside the CAT, i.e. it recognises there is a problem, but it is suggesting that the DMCC Bill is not the place to address this.
The upshot is that a potential post-PACCAR solution for enforceable LFAs in CAT cases is still on track to be put into law, if/when the DMCC Bill is enacted (and it is worth noting that the government’s solution would have retrospective effect). But a broader solution for non-CAT cases is being “actively considered” within the Ministry of Justice - in other words a wider solution might be found but, if it is, it is likely to be slower in coming to fruition than that proposed for funded opt-out cases in the CAT.
The Government have urgently addressed the potential implications of the judgment on claims under competition law
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