Mon - Fri 09:00 - 18.00
Central Court 25 Southampton Buildings London WC2A 1AL
Tel: +44 020 7936 3637
DX 458 London Chancery Lane
Chambers provides an out of hours service. If you call Chambers main number you will be diverted to the clerk on call who will be able to deal with your enquiry.
In 2017 the Competition & Markets Authority (“CMA”) found that Ping, a manufacturer of golf clubs, had infringed the prohibition in Chapter I of the Competition Act 1998 and Article 101 of the Treaty on the Functioning of the European Union. In that regard, Ping had entered into agreements with two UK based retailers containing clauses prohibiting those retailers from selling Ping golf clubs online. Upon considering the same, the CMA found that Ping had been operating an online sales ban, which was not objectively justified. The CMA imposed a financial penalty of £1.45 million on Ping and directed that it brings the online sales ban to an end, and must not impose the same or equivalent terms on other retailers. Ping duly appealed to the Competition Appeal Tribunal (“CAT”). In a judgment dated 7 September 2018 ( CAT 13) the CAT upheld the finding that the internet sale policy adopted by Ping amounted to a restriction of competition. The CAT however reduced the penalty imposed to £1.25 million. It should be noted that the CMA had accepted that Ping was pursuing a genuine commercial aim of promoting in-store custom fitting in respect to golf clubs, but found that it could have achieved this through less restrictive means.
On the 21st January 2020, the Court of Appeal handed down Judgement in an appeal from the CAT by Ping (available here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/13.html). The Court rejected Ping’s appeal, and provided a helpful analysis of the European Jurisprudence in this area, assessing competing arguments as to the implications and interpretation of previous case law. The case is being described as a “landmark case” which sends an important signal that attempts by manufacturers to impose absolute bans on selling their products online are unlawful. The maintenance of a prestigious image may, in some situations, justify the restriction of competition arising from the use of a selective distribution system, in particular in relation to luxury goods. Accordingly, companies may be able to prevent those goods from being sold online by distributors. However, crucially, one must examine the economic and legal context of the operation of any such intended restriction, before deciding whether it is an object restriction or not and thus permitted.
As the Chancellor of the High Court observed at para 131 of the Judgement “There are many ways in which Ping’s objective can be substantially fulfilled without imposing a blanket ban on internet sales”. Thus, it appears that the ultimate question a company must ask itself is: “is there another way, other than a prohibition clause, in which we can achieve our objective”. That question should be asked and answered as a matter of urgency, or any restrictive commercial practice, even if arguably well intended, could lead to significant fines and lengthy litigation.
Lewis Power QC & Colin Witcher: Business Crime and Regulatory Group, Church Court Chambers.
(this case comment does not constitute legal advice).
Alex’s client was arrested together with 2 others for allegations of Conspiring to murder his ex-wife and other offences... more
Church Court Chambers would like to congratulate Tomas McGarvey on his recent election to the Executive Committee of the The... more
Head of Chambers Kerim Fuad QC features in a documentary to be aired by Sky Crime concerning a high profile and sensitive murder... more
Following convictions for serious financial offences totalling £60 million, defendants appeared before the Royal Courts of... more
Church Court Chambers’ barrister Michael Polak secured his client a unanimous acquittal in a trial which finished today at... more
Yasin Patel, of Chambers Crime and Regulatory team managed to successfully obtain the acquittal of his client of a Murder charge... more
Alex Balancy leading Estelle Thornber secured the acquittal of their client on 14 Counts of Conspiracy to Supply and Offer to... more
Glenn Harris leading Liam Loughlin successfully defended a woman charged with conspiracy in London’s largest seizure of Chemsex... more
Islam khan invited to talk as immigration panellist to the Bangladeshi lawyers association on deportation and an update on the... more
George Hepburne Scott continues to enjoy a series of successes for his clients in Extradition cases at Westminster Magistrates’... more
Tonight at 7:30pm Andrew Taylor shall be on Times Radio talking about the A G References that are currently before the Court of... more
Colin Witcher of Chambers’ Crime and Regulatory Team led by Alisdair Williamson QC of 3 Raymond Buildings, defend in a case... more