More than 35 law firms and chambers have joined forces to create a pro bono scheme for competition law advice. Stephen Tupper reports
While it may be small and its ability to markedly improve the human condition inherently limited, the legal profession’s competition law pro bono scheme is, in its own way, something of a phenomenon. Partly by chance, but mostly by design, this scheme now plugs a significant and growing gap in the UK’s system of market regulation.
The list of winners is impressively long - enforcement bodies (and thereby taxpayers), consumers at large, users, service providers - and the flipside is equally impressively blank. The biggest winner of all, however, may well be the profession itself. Thirty-five law firms and two sets of chambers participate - a level of inter-firm and inter-branch collaboration that is, as far as the author is aware, unprecedented. Selfless co-operation aimed at helping others? Careful now, or we may find ourselves changing people’s perceptions of the true nature of lawyers.
The scheme was launched in October 2006 and was designed to provide an independent, no-cost, source of expert advice to individuals or businesses who believed that their rights under competition law may have been infringed, or who were concerned that they may be infringing. The UK’s competition authorities, including the sectoral regulators, have finite resources and, consequently, have been obliged to prioritise casework to ensure that the interests of the public are best served. Demand for help from the governmental bodies has regularly overwhelmed their ability to supply it. This problem has been compounded by the fact that many of those seeking assistance are ill-informed and insufficiently aware of the technicalities of competition law and policy to be able to articulate properly the true nature of the problems they face.
It became clear that the system might be improved for both users and regulatory bodies alike if individuals and small businesses were given easy access to professional advice. This in turn, it was thought, would provide real benefits not only to those immediately involved but to the national economy and, in particular, consumers as a whole. The costs of obtaining legal advice can, however, act as a deterrent. Senior members of the competition authorities, most notably Sir Christopher Bellamy, the former chairman of the Competition Appeal Tribunal, have spoken publicly about the need for the profession to assist in providing a free or low-cost solution to fill the gap. Inception of the scheme was the legal profession’s response to the challenge presented. It aims to provide a solution by offering free legal advice, primarily to those who feel that they are the victims of competition law infringements, from professionals active in the field.
The scheme was developed with the assistance of LawWorks (formerly the Solicitors Pro Bono Group). Users of the scheme access the pro bono web-page from a site developed by LawWorks (www.probonogroup.org.uk/competition), fill in their contact details and describe the nature of their query. This information is then forwarded to the scheme administrator who provides the user with the contact details of an adviser who can assist. Each adviser commits to providing up to two hours worth of free legal advice concerning the possible impact of the European Union competition rules and/or national competition law on the problems identified by the user. The work is provided voluntarily and without payment to the lawyer.
In October last year, nearly a year to the day since its launch, the scheme received its 100th relevant enquiry (more than 210 enquiries in total have now been submitted to the scheme of which more than 90 concerned issues unrelated to competition law, leaving 120 so-called ‘relevant’ enquiries). It was determined, at the outset, that on reaching the 100 enquiry milestone, the scheme’s originators/administrators, Watson Farley & Williams, would conduct a review of the scheme, gathering feedback from participants and regulators, in order to assess the scheme’s development and consider any necessary improvements. The scheme has been an unqualified success in the opinion of all. This is almost entirely due to the generous efforts of the law firms and chambers who have been supporting the scheme more or less from the outset.
It is not just, however, about philanthropy. The rewards for those that participate in the scheme are manifest. Many of the cases that have been handled have involved multinational brand names. Some have converted into being full-blown fee-paying projects (the scheme offers two hours of ‘free’ advice; what happens after that time is used is down to the firm and service user involved) or into marquee cases before the ‘show’ courts (for example the Competition Appeal Tribunal). Young competition lawyers get to cut their teeth on real clients with real problems and law firm marketing directors get some powerful new text to add to their corporate social responsibility statements with all of the client care benefits that this provides nowadays.
In the meantime, some serious competition law infringements have been identified and terminated via the scheme. In one case, a large international advertising company engaged in a full and instantaneous about-face simply at the mention of the scheme’s name. By the time the service provider returned the user’s first call the infringing company had already raised the white flag. Even in cases which can not be resolved by the application of competition rules, the users benefit simply by being able to eliminate competition law from their list of potential remedies. In the meantime, the regulators have been given an invaluable safety valve. Resource pressures have meant that not all deserving cases are being given, nor can they receive, the necessary attention. The scheme has enabled the regulators to refocus on what they consider to be the more invasive and serious infringements safe in the knowledge that there is someone available to help the others.
The scheme has now caught the attention of the European Commission (EC) which is actively considering whether the scheme might have a role to play as part of the EC’s initiatives to encourage the use of private remedies to assist in the enforcement of competition law. Theoretically there would be nothing to prevent similar schemes to be established in all 27 member states of the European Union. Being thought leaders on such an issue is another feather in the cap of the UK’s legal profession and, more specifically, its competition practitioners.
Ever so humble though it may be this is a scheme that works on every level. Given that the country’s economy is based almost entirely upon free market economics, and given that competition law is the rule book by which the free market operates, the scheme’s contribution to keeping things ticking along is valuable. Most importantly, every citizen, imperceptibly perhaps, ends up being the winner.
Stephen Tupper is a partner at Watson Farley & Williams in London.