Judgement given in Agents' Mutual 'one other portal' case

The Competition Appeal Tribunal has issued its judgement in the case between Agents’ Mutual and the Gascoigne Halman agency - and it appears to be a win for Agents Mutual.

The case centred on the ‘one other portal’ imposed by Agents' Mutual's OnTheMarket portal. Under its agreement with Agents’ Mutual, Gascoigne Halman had subscribed to OnTheMarket but later asserted that various provisions in the agreement set up with OTM breached section 2 of the Competition Act 1998 - actually known as the Chapter I prohibition - were void. 

In this afternoon's judgement, the tribunal appears to describe the 'one other portal' rule as "pro-competitive" and declares “the rule did not form part of a wider concerted practice to ‘boycott’ Zoopla and was not invalid on that account.”

The full decision runs to 168 pages but the summary of this afternoon’s judgement, issued by the CAT, is:

In overview, the specific provisions were: 

1) a rule by which an estate agent member may list its properties on no more than one other portal (the “One Other Portal Rule”); 

2) a rule restricting membership of Agents’ Mutual to full-service office-based estate or letting agents, as opposed to agents operating only online (the “Bricks and Mortar Rule”); and 

3) a rule requiring members to promote only OnTheMarket and not any other property portal (the “Exclusive Promotion Rule”). 

Gascoigne Halman further contended that the One Other Portal Rule formed part of a wider arrangement between Agents’ Mutual and others collectively to boycott Zoopla and/or Rightmove, contrary to the Chapter I prohibition. 

For the reasons given in the Judgment, the Tribunal held that the Competition Issues be determined against Gascoigne Halman. More specifically, the Tribunal held that: 

1. As regards the One Other Portal Rule: 

(a) The rule did not infringe the Chapter I prohibition by object. 

(b) The rule did not infringe the Chapter I prohibition by effect. 

(c) The rule was, in any event, objectively necessary to the “Arrangements” (the various rules which bind members of Agents’ Mutual, namely the listing agreement, articles of association and membership rules) as a whole, which were pro-competitive. 

(d) The rule did not form part of a wider concerted practice to “boycott” Zoopla and was not invalid on that account. 

(e) The rule was not an exempt agreement within the meaning of section 9 of the CA. 

(f) If, contrary to the Tribunal’s conclusions, the rule did infringe the Chapter I prohibition, the Tribunal found that it was not severable from the Arrangements. 

2. The Bricks and Mortar Rule did not infringe the Chapter I prohibition by object. If, contrary to the Tribunal’s conclusion, the rule did infringe the Chapter I prohibition, the Tribunal found that it was severable from the Arrangements. 

3. The Exclusive Promotion Rule did not infringe the Chapter I prohibition by object. If, contrary to the Tribunal’s conclusion, the rule did infringe the Chapter I prohibition, the Tribunal did not consider it to be objectively necessary. The Exclusive Promotion Rule was severable from the Arrangements. 

Because the Competition Issues were determined within the broader context of proceedings in the Chancery Division, the Tribunal made no further order beyond the determinations set out above.