Osborne Clarke successful in Competition Appeal Tribunal, with client awarded indemnity costs

In proposed opt-out collective claims in the music industry, the proposed class representative ("PCR") has withdrawn her applications, and been ordered to pay the costs of the proceedings.

Osborne Clarke has represented the two proposed defendants, Korg (UK) Limited and Korg Inc. ("Korg"), in respect of one of the proposed collective claims before the Competition Appeal Tribunal ("CAT").

The proposed claims arose out of settlement decisions of the UK Competition and Markets Authority ("CMA") with leading manufacturers of musical instruments.

When the proposed claim was brought against Korg, the PCR indicated that she was soon to enter into an agreement with a litigation funder. However, after the PCR repeatedly failed to disclose the funding materials, the CAT listed a hearing, directing her to file evidence of her funding and insurance arrangements. 

The potential funding agreement had in fact fallen through in early 2023, and the PCR's solicitors had been evasive whilst seeking to find new funding. The PCR was ultimately unable to secure funding, and applied to withdraw the proposed claims.

All of the proposed defendants were awarded their costs of the whole proceedings, and on the indemnity basis from April 2023. The CAT noted in particular the very reasonable level of costs incurred by Korg and made very minimal deductions to its claimed costs.

This resulted in a great success for Osborne Clarke clients Korg, with the proposed collective actions withdrawn, and almost all of their legal costs to be recovered.

Osborne Clarke comment

This case confirms the important principle that a PCR has a duty to keep the court and other parties informed of material changes to funding or insurance arrangements. A failure to do so puts them at risk of paying indemnity costs if these arrangements ultimately fall through.

Osborne Clarke's team

Osborne Clarke’s competition litigation team was led by Aqeel Kadri and Marc Shrimpling.