Last year, Professor Carolyn Roberts brought a landmark class action against six of England’s largest water companies for alleged breaches of environmental duties. The suit claimed the six defendants significantly under-reported pollution incidents, which allowed them to charge higher prices than would have been permitted if accurate reports had been made.

This under-reporting was argued to constitute an abuse of a dominant position under competition law. The lawsuit was brought on behalf of twenty million customers, who the lawsuit claimed may have been overcharged by between £800 million to £1.5 billion. The lawsuit was the first environmental competition class action to be filed under the UK collective action regime.

Photo description: A gavel coming down on a desk. Photo by Katrin  Bolovtsova/ Pexels

However, in a judgement handed down earlier this month, the UK Competition Appeal Tribunal (CAT) dismissed the case after it was unanimously struck down by Justice Peter Roth, Ian Forrester KC and Professor Alasdair Smith. The decision hinged on a provision in the Water Industry Act 1991 (WIA), which ultimately precluded the claims from proceeding under competition law. Had the claims not been excluded under the WIA, the tribunal stated that it would have granted a collective proceedings order (CPO) in each set of proceedings.

The firm representing Professor Roberts has indicated they are considering an appeal against the Tribunal’s decision. However, the Tribunal’s judgment is significant as only the second outright refusal to grant CPO.