The Tribunal handed down judgment today on Professor Carolyn Roberts’ application to bring competition claims against six monopoly sewerage companies for their misreporting of the number of sewage spills to the Environment Agency and Ofwat, which she says has led to tens of millions of their household customers being overcharged.
The Tribunal has found in Professor Roberts’ favour on all the certification issues: Professor Roberts is well-qualified to act as a proposed class representative, her legal team have an effective and well-funded plan to bring the claims and prove her allegations, and her claims will bring “significant benefits” to the class members. The Tribunal also agreed with Professor Roberts that for a dominant undertaking to mislead a public authority is a competition law abuse, and it was also robust in holding that monopoly sewerage companies are subject to competition law, rejecting the defendant’s arguments to the contrary as “problematic and unsatisfactory“. However, disappointingly, the Tribunal has interpreted the application of section 18(8) of the Water Industry Act to mean that because the PCR’s claim for damages is connected to the operation of the price control regime agreed between the sewage companies and Ofwat every 5 years, her claim is prevented from continuing despite her wins on every other issue. While this is a complex question of statutory law, Professor Roberts believes that the Tribunal’s interpretation does not accord with the Supreme Court’s recent decision in Manchester Ship Canal v United Utilities, which has clarified the scope of this provision. Professor Roberts is therefore carefully considering grounds for appeal and remains hopeful that the claim will ultimately be able to proceed.