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).
Maria Karaiskos prosecutes a prison officer for Misconduct in Public Office at HMP Swaleside. The prison officer had a... more
Church Court Chambers stands united with Essex Court Chambers and its members, following the decision of the Chinese Government... more
Liam Loughlin secures a suspended sentence for his client caught smuggling a large amount of cannabis in to the United Kingdom... more
A teenager on trial for serious violent offences was acquitted by a jury following a trial. The incident occurred in the home... more
The client of Church Court Chambers’ Michael Polak, journalist Kilwe Farah, was released on Monday 22 March 2021. Michael was... more
On 22 March 2021, George Hepburne Scott’s client, P.T. was discharged by a District Judge at Westminster Magistrates’... more
On 18th March 2021, Tomas McGarvey’s client E M, a company director charged with driving without due care and attention, was... more
On Thursday 18 March 2021 Church Court Chambers’ barrister Michael Polak spoke on the Centre for Turkey Studies’ Panel on... more
On 18 March 2021, George Hepburne Scott’s client, B.F, an Antiguan national, was sensationally discharged from his... more
Chiara Maddocks, Fiona McAddy and Amy Hazlewood feature in this years SEC Twitter campaign celebrating International Women’s... more
Today is International Women’s Day 2021. This year’s theme is “Choose To Challenge”. Today we celebrate the Women... more
Church Court Chambers’ Michael Polak, who is instructed by the family of the journalist Kilwe Farah and is acting with the... more