On 17 October 2025, the Competition Appeal Tribunal (CAT) handed down its long-anticipated judgment in the opt-out collective proceedings relating to boundary fares, finding no breach of competition law. This blog explores the CAT's judgment and the broader implications for the opt-out regime. 

Background

This was an opt out antitrust collective brought on behalf of rail passengers. The alleged abuse in this case related to boundary fare tickets issued by certain rail operators. Boundary fare tickets are extension tickets sold for use with a Travelcard. A Travelcard allows a customer to travel within set zones and, if a customer wishes to travel beyond those zones, they can purchase a boundary fare to cover the balance of their journey.

The Alleged Abuse

Mr Gutmann, the Class Representative in these proceedings, alleged that the train operating companies had abused their dominant position by there being (i) insufficient awareness among customers of boundary fares; and (ii) a lack of availability of boundary fare tickets. Mr Gutmann alleged this resulted in customers paying twice for part of their journeys, as they would pay for their whole journey rather than only the part that was not already covered by their Travelcard.

The CAT's findings

For the purpose of this trial, the CAT assumed that the train operating companies held a dominant position. On that assumption, the CAT considered whether the alleged abuse breached competition law.

 Awareness

As to whether there was insufficient awareness among customers of boundary fares, the CAT noted the Class Representative's evidence on this point was "wholly unsatisfactory". The CAT instead pointed to evidence that there was no deliberate policy of concealment of these fares, as demonstrated by the availability of these tickets at ticket offices and the training given to staff on these fares. The CAT further noted that there was no competition law obligation on the train operating companies to actively promote boundary fares.

 Availability

On availability, the CAT considered in person and online sales. For in person, while one of the train operating companies had not made these tickets available at ticket vending machines, the CAT found this to be objectively justified given the aim was to prevent fraud. For online sales, the CAT accepted that the relatively low proportion of sales through digital sales during the claim period justified the lack of prioritisation from the train operating companies in selling these tickets online.

Further Allegations

The CAT also considered the Class Representative's allegations relating to:

Third Party Retailers - the Class Representative alleged that the train operating companies should have compelled third party retailers to sell boundary fares. The CAT noted it was not clear contractually that the train operating companies had the power to do this in any event.

Other Ticket Types – the Class Representative alleged that, insofar as there were types of fares for which no boundary fare existed, the failure to offer a boundary fare constituted an abuse. The CAT noted that the complexity and marginal benefit of creating boundary fare products for these tickets would not have amounted to competition on the merits and so the failure to create these tickets did not amount to an abuse.

It noted that the law provides other means to investigate and potentially control the conduct of enterprises, particularly in regulated sectors. The fact that the Defendants were not in fact being paid twice, was also an important context in which the allegations were considered. Ultimately, the CAT found that no breach of competition law had been committed.

 Reflections on the Regime and the Bounds of Competition Law

The CAT (chaired by former President of the CAT Sir Peter Roth) also made a number of wider observations about the type of consumer-facing conduct that should not be considered to be an abuse of a dominant position.

The CAT recognised that 'abuse' of dominance is a broad concept, but that competition law is not a "general law of consumer protection". The fact that a dominant company could have carried out a particular aspect of its business better, or in a different way that would have benefitted consumers, does not mean that this conduct crosses the line to constitute abuse. Critically, a dominant company has no duty under competition law actively to assist all its customers to pay the lowest price or to buy the optimal product for their needs.

This indicates the CAT is carefully scrutinising whether conduct truly constitutes a breach of competition law and may encourage less expansive claims in future.

Next Steps

We anticipate the Class Representative will be closely scrutinising this judgment to consider whether to seek permission to appeal and he has 21 days from the date of notification of the decision to do so.

 Notably, the CAT concluded this judgment by stating that, even if the CAT was wrong in its rejection of only some elements of the alleged abuse, that could nonetheless lead to a significant narrowing of the class and reduction in the potential amount of aggregate damages. In the CAT's certification judgment, it found that the cost-benefit of the proceedings was a factor that weighed slightly against certification. If there was a partially successful appeal, and the proceedings could in principle proceed on a narrower basis, the CAT noted that "the cost-benefit of the proceedings going forward would clearly be markedly changed" and it would then wish to consider whether the certification of the proceedings should be revoked. This would then end the claim, potentially giving the CR pause for thought as to whether an appeal is worthwhile.