But the question on many people’s lips is - was it worth it? After all, the number of claimants who registered for the action was much smaller than the number of potential claimants; so, was it worth the time and money?
The short answer to that is, yes. The case showed that there is consumer and media interest and that a good deal can be done. But, without doubt, the system that we currently have is not simple - either for consumers or the representative body bringing the action. If we at Which? had one wish, it would undoubtedly be to change the system to ‘opt-out’. At a stroke, this would change the terrain entirely as it would do away with the need to worry about recruiting claimants upfront and issues of proportionality.
Needless to say, business is not keen on this idea and portrays opt-out as the work of the US-compensation culture devil. In truth, their objection to opt-out is down to fear of having to divest themselves of their unlawful gain. The fact is that there are many, many differences between the US and UK litigation systems that will ensure that we do not go compensation mad.
So, where does that leave us? The Office of Fair Trading’s current recommendations to the Government are a good start, but we accept that a blanket opt-out system for all consumer redress claims may not be appropriate. After all, opt-out may not be right for environmental or some product liability claims. So, why not use a hybrid system where opt-out applies where the individual loss is small and ‘opt-in’ where the compensation stakes are higher. This kind of pragmatic solution - which is similar to that chosen by the Danes - would make large-scale but low-value consumer redress a certainty; and let us be clear that a consumer redress system should only be used to obtain fair compensation for affected consumers. Telephone-number windfalls should have no place in such representative actions: where there is an excess (which there nearly always will be), that excess should go to charity rather than revert to the cartelist.
And you never know, a by-product of such a system may be that few claims actually go to court - after all, if you know you are on the hook, you may as well try and negotiate yourself out of the situation and at least avoid two lots of legal fees - yours and the claimants’ - and use settlement discussions to think imaginatively. Why not offer money’s-worth, such as points on a loyalty card programme rather than shell out hard cash? This could be a win-win situation - the cartelist gets consumers back into its store and consumers get a quick deal.
But despite this Government’s averred desire to empower consumers, any changes are not going to happen overnight, which means that any actions in respect of the BA/Virgin and dairy cartels are going to happen under the current system with all of its faults. With an action already underway in the US and UK claimants being named as a class of claimants in the BA/Virgin case - it may be that, after all the huffing and puffing of big business, US-style consumer redress will not come to the UK, but UK consumers will go for US-based class actions.
Deborah Prince is head of legal affairs at Which?.
