Ruling on relief from sanctions in Rachel Kent collective action

 

The Competition Appeal Tribunal (CAT) has ruled on relief from sanctions in the collective proceedings brought by Dr Rachael Kent (the Class Representative (CR)), under section 47B of the Competition Act 1998.

The proceedings allege that Apple has abused a dominant position, in breach of Article 102 of the TFEU and the Chapter II prohibition of the Competition Act.

The alleged infringements involve requiring iOS App developers to distribute iOS Apps exclusively via the Apple App Store.  It is further alleged that Apple device users are charged excessive and unfair prices represented by a commission charged by Apple on all purchases over Apple payment system.

In August 2023, the CAT ordered that the parties serve signed statements of witnesses of fact by 26 January 2024. The CR sought relief from the sanction set out in CAT Rule 55(2), to submit a witness statement of Christian Owens, dated 13 May 2024.

Although the failure to provide witness statements in accordance with the timetable directed by the CAT is a serious matter, the CAT concluded that the failure in this case was not of material significance and at the lower end of seriousness for the type of breach. It was found that Mr Owens gave evidence on 11 April 2024 in proceedings in an Australian court against Apple entities and the CR only became aware of that evidence shortly thereafter.

Dr Rachael Kent v Apple Inc and Apple Distribution International Ltd [2024] CAT 40, ruling on relief from sanctions