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26 Restitution L. Rev. 1 (2018)

handle is hein.journals/restilwr25 and id is 1 raw text is: RESTITUTIONARY RELIEF IN COMPETITION LAW CLASS ACTIONS: AN EVOLVING LANDSCAPE RACHAEL MULHERON* For any class action that is brought under the UK's new competition law class actions regime, the representative claimant will sue for the tort of breach of statutory duty, seeking damages on behalf of class members for infringement of relevant competition law statutes. Compensatory damages are the usual remedy claimed for that tort (as evidenced already in Gibson v Pride Mobility and Merricks v Mastercard). This article concerns a different remedy, viz, that of restitutionary relief It considers this in two conceptually different forms. Thefirst is a claim for restitutionary damages as a remedy for breach of statutory duty (part of that body of law called restitution for wrongs). It will be argued that the law has moved on since the rejection of that remedy in Devenish Nutrition v Sanofi-Aventis. The second is a cause of action for unjust enrichment for mistaken payments giving rise to an account of profits (which falls within restitution for unjust enrichment). Both claims potentially involve controversial and unsettled areas of law but, in this emerging area of jurisprudence, it is contended that both may be arguable in an appropriate class action in the future. A. INTRODUCTION The first two actions under the UK's competition law class action regime contained in the Competition Act 1998 (hereafter, the CA regime)1 Gibson v Pride Mobility Ltd * Chair of Tort Law and Civil Justice, Department of Law, Queen Mary University of London. The author is Research Consultant to the Civil Justice Council of England and Wales (CJC); was a member of the CJC 2009 18; was a member of the Competition Appeal Tribunal Class Actions Working Party which drafted rules of court for the class action regime enacted in the Consumer Rights Act 2015 (UK) (CRA 2015); and advised the Dept for Business, Innovation and Skills (BIS) during this reform process. However, the views expressed in this article are written in a personal academic capacity, and should not be taken necessarily to represent the views of any entity of which the author is or was a member or otherwise associated. The author gratefully acknowledges the helpful comments by an anonymous referee on an earlier draft. The usual caveat applies. The following abbreviations are used: Burrows, Restatement: A Burrows, A Restatement of the English Law of Unjust Enrichment (OUP, 2012); Burrows, Restitution: A Burrows, The Law of Restitution, 3rd ed (OUP, 2011); EC: European Commission; EC Treaty: Treaty establishing the European Economic Community 1957 (Treaty of Rome); Edelman: J Edelman, Gain-Based Damages (Hart, 2002); Goff & Jones: C Mitchell, P Mitchell and S Watterson (eds), Goff and Jones: The Law of Unjust Enrichment, 9th ed (Sweet & Maxwell, 2016); LC 247: Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Coin 247, 1997); LRC 60: (Ireland) Law Reform Commission, Aggravated, Exemplary and Restitutionary Damages (LRC 60, 2000); Mulheron, Collective Redress: R Mulheron, Reform of Collective Redress: A Perspective of Need (2008) (available at: https://www.judiciary.uk/wp-content/uploads/JCO/Documents/CJC/Publications/Other / 2Bpapers/reform-of- collective-redress.pdf); Mulheron, Class Action: Mulheron, The Class Action in Common Law Legal Systems: A Comparative Perspective (Hart, 2004); Mulheron, Tort: R Mulheron, Principles of Tort Law (CUP, 2016) (hardcopy text of 18 chapters, and 10 additional chapters online available at: www.cambridge.org/Mulheron); Strand, Passing-On: M Strand, The Passing-On Problem in Damages and Restitution under EU Law (Elgar, 2017); Williams, UE&PL: R Williams, Unjust Enrichment and Public Law (Hart, 2010). 1. Collective actions are permitted under s 47B(1) of the Competition Act 1998 (CA 1998). Entitled, Private

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