UK Supreme Court refuses Marks & Clerk permission to appeal in secret commissions case

Trial expected next January as judges say appeal bid ‘does not raise an arguable question of law’ over group claims
Portrait of Peter Rouse

Peter Rouse, director of Commission Recovery Limited

The UK Supreme Court has rejected IP firm Marks & Clerk’s permission to appeal a decision regarding secret commissions it allegedly received for client referrals.

Marks & Clerk had argued that the claimant, Commission Recovery Limited (CRL), had not met the hurdle for representative claimants set out in the Supreme Court judgment of Lloyd v. Google in November 2021.

However, Supreme Court judges Lord Reed, Lady Simler and Lord Leggatt refused permission “on the ground that the appeal does not raise an arguable question of law”. The trial is now expected to go ahead in January next year.

CRL was established to bring the claim against Marks & Clerk for allegedly receiving secret commissions paid by CPA Global (now IP management company Clarivate), in return for the firm’s client referrals. CPA allegedly paid these secret commissions to Long Acre Renewals, a partnership set up by current and former partners of Marks & Clerk.

The law firm had argued at the High Court and then again at the Court of Appeal in January that the claim advanced by CRL did not meet the “same interest” requirement needed for representative claims under CPR 19.8 (previously CPR 19.6)

The Court of Appeal’s decision in January upheld the High Court’s ruling saying that the members of the class had the “same interest” in the claim for the purposes of CPR 19.8(1), and that the rule therefore applies.

Rule 19.8 refers to the rules around parties and group litigation in England and Wales.

Lords Reed and Leggatt were two of the five justices who decided Lloyd v Google before the Supreme Court in November 2021. The case is the first appellate ruling on the representative action regime since Lloyd v Google.

Commenting on the Supreme Court’s decision, Peter Rouse, director of CRL, said: “Since 2021 Marks & Clerk and its affiliated partnership have taken every possible step to try to avoid this claim being determined on a class-wide basis. Those challenges have failed each time, and I now look forward to the case proceeding to trial next year.”

In bringing the claim, CRL pleaded the case based on that of another company, Bambach Europe, arguing that their case was representative of other companies that had been impacted by Marks & Clerk’s alleged actions under CPR 19.8.

A Marks & Clerk spokesperson said it was “disappointed” that the Supreme Court will not be considering the Court of Appeal’s decision.

However, they noted that: “We maintain our position that CRL mischaracterises the relationship that our firm had with CPA during the period in question – and the work that was done for our then clients – whilst attempting to use the representative action system in an unsuitable and financially-motivated manner. 

“These points remain open following the judgment, and we therefore look forward to showing the High Court at trial why CRL’s complaint cannot be properly advanced on a representative basis,” the spokesperson added.

Clarivate noted that neither Clarivate nor CPA Global were named in the legal action and declined to comment on the case.

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