End of the line – Success for train operators in ‘Boundary Fares’ collective proceedings
On 17 October 2025, the Competition Appeal Tribunal (“CAT”) handed down its judgment (“Judgment”)1 in the landmark opt-out collective proceedings brought by Mr. Justin Gutmann on behalf of an estimated 1.4 million rail passengers against three current or former major train operating companies (the “Defendants”)2, valued at £93 million (the “Boundary Fares Claims”)3. You can find our previous commentaries on the Boundary Fares Claims on our website4.
The Judgment is a decisive victory for the Defendants, who defended themselves against allegations that they had abused their allegedly dominant market positions by double-charging passengers holding Transport for London Travelcards5 on journeys where “Boundary Fares”6 should have applied. Mr. Gutmann argued unsuccessfully, on behalf of the estimated 1.4 million passengers who comprised the class he represented, that the Defendants had failed to make Boundary Fares sufficiently available and/or take reasonable steps to ensure that customers were aware of their existence – in breach of the prohibition on the abuse of a dominant position under Chapter II of the Competition Act 1998 (“CA98”)7.
For stakeholders across the rail industry (in particular, other current and former train operating companies (“TOCs”) operating in and around London), the CAT’s decision is crucial in clarifying how competition law interacts with consumer protection concerns; setting important boundaries for the UK’s opt-out collective actions regime in the rail sector; and providing guidance.
The Boundary Fares Claims are one of a small number of opt-out collective actions to have gone to trial in this jurisdiction. The UK’s burgeoning ‘opt-out’ collective actions regime, introduced following the passage of the Consumer Rights Act in 2015, is designed to allow members of a defined class who have suffered loss due to the same anti-competitive conduct to seek redress collectively, without the need for class members to bring their own claims (the costs of which may be prohibitive or disproportionate)8. As the name suggests, under the ‘opt-out’ regime, all members of the defined class are automatically included in the claim unless they actively withdraw or ‘opt out’.
Background – Mr. Gutmann’s arguments
Mr. Gutmann argued that, had the Defendants provided adequate information and opportunities to purchase Boundary Fares, Travelcard holders would have paid only for the portion of their journey beyond the last zone covered by their Travelcard, rather than buying a full fare and effectively ‘paying twice’ for travel already included under their Travelcard.
He alleged that the failure to take sufficient steps to prevent class members from being double charged (either by not ensuring customers were aware of Boundary Fares, or not making Boundary Fares sufficiently available for sale), amounted to an ‘exploitative abuse’ of dominance by each of the TOCs (on their respective lines), by “directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions”, prohibited under section 18(2)(a) CA989. In particular, Mr. Gutmann relied upon judgments of the European Union courts, in which dominant undertakings were found to have abused their dominant positions by imposing charges that resulted in customers paying for services they did not use, or being double-charged10.
The CAT’s analysis
The CAT did not come to a final determination on the whether the Defendants held dominant positions and instead proceeded on the assumption that they were dominant to set up the second part of its analysis – whether the Defendants had committed an abuse.
No commercial gain
Upon assessing the Defendants’ evidence, the CAT was unconvinced that the present case was analogous to those relied upon by Mr Gutmann. The CAT noted that the revenue allocation model under the Travelcard agreement was designed to track actual usage as closely as possible, meaning TOCs did not receive double payment for the same journey segment11. As such, unlike the situations in Deutsche Post and DSD, the Defendants were not receiving double payment, or payment for services not actually provided. Whilst acknowledging that finding an abuse does not require proof of commercial gain, the CAT highlighted that the absence of any such benefit was a relevant contextual factor, particularly when considering whether the conduct was objectively justified.
Alleged lack of awareness
Contrary to Mr. Gutmann’s submissions, the CAT was clear: there was no evidence that the Defendants had deliberately hidden or obscured Boundary Fares from customers. On the contrary, Boundary Fares were available at all ticket offices, and staff were trained to assist customers who held Travelcards. The CAT also pointed out that Boundary Fares are only relevant for a niche customer group - Travelcard holders making occasional journeys beyond their usual zones - and were never a central product for the Defendants. Whilst Mr. Gutmann relied heavily on the relatively low sales numbers of Boundary Fares, the CAT found this unconvincing, noting that there was no reliable evidence about how many eligible journeys were actually made or how many passengers were unaware of the option12. The CAT also criticised Mr. Gutmann’s lack of direct consumer survey evidence, as the low number of Boundary Fares sold were insufficient to prove widespread ignorance or establish that passengers were being unfairly treated.
The CAT noted that competition law does not require a dominant company to actively promote every product that could benefit a subset of its customers, as long as the product is available and not deliberately concealed13. Whilst the Defendants could have run marketing campaigns to boost awareness, the absence of such efforts did not amount to an abuse of their dominant positions - especially given the practical need to prioritise other regulatory and commercial obligations14.
Sufficient availability
Again, contrary to Mr. Gutmann’s submissions, the CAT found that Boundary Fares were sufficiently available through the various ticket sales channels. For example, Boundary Fares were available for purchase at all ticket offices operated by the Defendants and, for most Defendants, through ticket vending machines. None of the Defendants sold Boundary Fares online, but the CAT noted that digital sales were a relatively minor channel during much of the claim periods and that point-to-point fares, whilst not a perfect substitute, were available online15. Ultimately, the CAT concluded that although the Defendants’ online systems could have been improved and Boundary Fares were not available across every sales channel, the overall availability was sufficient such that no abuse of dominance had been committed.
Finally, the CAT assessed the position of third-party ticket retailers (“TPRs”), in particular, Trainline which now accounts for over 90% of TPR digital sales and which did not offer Boundary Fares on its consumer-facing website during the claim periods. Despite Mr Gutmann’s arguments, the CAT found that there was no clear contractual obligation on the Defendants to compel TPRs to offer Boundary Fares. In the case of Trainline, it was unrealistic to consider that the Defendants had sufficient bargaining power to force this. There was also no evidence that the Defendants discouraged the sale of Boundary Fares. As such, the “decision whether or not to sell Boundary Fares was taken independently by each TPR” and did “not give rise to any abuse”16.
Concluding remarks
The Judgment will be welcomed by TOCs, keen to understand the extent of their obligations under the competition rules. As the CAT acknowledged, TOCs already face substantial regulatory obligations and compliance and commercial risks. However, although the Judgment provides a degree of legal certainty at present, at least in relation to the lawfulness of the specific conduct alleged, the CAT also observed that the ticketing system is extremely complex. Even though failures to enable customers to purchase Boundary Fares online was not found to currently amount to an abuse, if online sales continue to grow, then “there could come a point” where a TOC “would risk a finding of abuse”17. Whilst the CAT’s comment was directed at Boundary Fares, TOCs should regard this as a broader warning to pay close attention to the transparency and availability of all ticket types on online and app-based platforms, particularly as these sales channels continue to grow in importance for consumers. Of course, simplification of the ticketing system – which will be managed by Great British Railways in future, with TPRs continuing to play an important role - is one of the aspirations of the forthcoming rail reform programme. You can find our thoughts on the reform proposals and the draft Railways Bill on our website18.
The Boundary Fares Claims also confirm that “Competition law is not a general law of consumer protection” and the fact that a dominant company could carry out aspects of its business better or differently to consumers’ benefit “does not mean that this conduct crosses the line to constitute abuse.”. Indeed, it is clear that the CAT will closely scrutinise alleged abuses of dominance, and that asserting a lack of awareness or availability may not, on its own, be sufficient to establish abusive conduct. Claimants must be able to support their case with evidence of concrete, identifiable acts or omissions, rather than relying on diffuse allegations.
As for the opt-out collective actions regime, the Boundary Fares Claims serve to illustrate the lengthy and complex nature of opt-out claims. The claims were initiated in October 2019, certified in October 2021, and the Judgment was finally handed down in the first phase of the litigation in October 2025. Although delays were caused by various factors, some of which were unique to this case19, the lengthy and costly nature of opt-out collective proceedings is evident. Nonetheless, the case illustrates a benefit that can sometimes be derived from the CAT ordering a split trial in complex competition damages litigation. Although it took considerable time to reach Judgment in the first trial concerning liability, the split trial has ultimately saved time and costs by avoiding issues of causation and quantum being addressed unnecessarily in evidence and submissions (assuming, of course, that the Judgment is not successfully appealed). Mr Gutmann will now have to consider his options, including potential appeal20. The Judgment may not be the final stop on this journey.
Footnotes
1 Available at: *13047719 J Gutmann South Western; 13057719J Gutmann South Eastern; 14257721 Justin Gutmann v Govia Thameslink - Judgment [2025] CAT64 | 17 Oct 2025.
2 First MTR South Western Trains Limited, London & South Eastern Railway Limited, and Govia Thameslink Railway Limited.
3 The claims were originally also brought against Stagecoach South Western Trains Limited, however the parties reached a £25 million settlement which was approved last year by the CAT.
4 Railway collective action: Ticketing, zonal fares and large claims | Stephenson Harwood
5 Travelcards allow unlimited travel within particular specified fare zones on London's public transport networks.
6 As the CAT explained, Boundary Fares “are a form of extension or add-on ticket sold for use with a Travelcard. On the basis that a valid Travelcard will cover travel on part of the journey which the customer wishes to take, the Boundary Fare covers the balance of the journey from the outer edge of the zone to which the Travelcard applies to the customer’s destination”, Judgment, paragraph 16.
7 Note that the Judgment solely concerns examining whether the Defendants abused their dominant positions as alleged, as further phased trials were planned to address issues regarding causation and quantification of damages. Given the CAT’s finding that no abuse of dominance was committed, the other planned phases will no longer proceed.
8 This contrasts with ‘opt-in’ proceedings, in which individuals / entities must take active steps to join the claim. In order for a collective action to proceed, the CAT must first grant a Collective Proceedings Order (“CPO”), certifying that the claims are suitable for litigation under the collective proceedings regime. The Boundary Fares Claims were certified in October 2021.
9 Judgment, paragraph 52.
10 In particular Mr. Gutmann relied on Joined Cases C-147 & 148/97 Deutsche Post v GZS & Citicorp ECLI:EU:C:2000:74 (“Deutsche Post”), in which the Court of Justice of the European Union (“CJEU”) held that it was abusive for the German postal operator to demand full internal postage payments from customers without first deducting international terminal dues from other national postal operators that they had already been paid, and was thereby “being paid twice” for the same service (Judgment, paragraphs 53-56). Similarly, Mr Gutmann relied on Case C-385/07P Duales System Deutschland (“DSD”), where the CJEU found an abuse as the company required payment for packaging that was not actually collected under its recycling system, imposing fees disproportionate to the value of the service provided (Judgment, paragraphs 57-59).
11 Judgment, paragraph 90.
12 Judgment, paragraphs 93-101.
13 Judgment, paragraph 102.
14 Judgment, paragraphs 107-111. For example, the CAT stated: “we cannot accept that the “special responsibility” of the dominant firm to avoid the imposition of unfair trading terms requires it to promote or advertise a product that will benefit some of its customers so as to increase their awareness of that product. To repeat what we have said above, nothing in the jurisprudence on abuse of dominance supports such a proposition.”
15 Judgment, paragraphs 128-133.
16 The CAT also considered whether the failure to introduce Boundary Fares to Advance Fares and Season Tickets amounted to an abuse of dominance, ultimately concluding that it did not (Judgment, paragraphs 167, 171).
17 Judgment, paragraph 135.
18 Remember, remember, the fifth of November: a new Railways Bill | Stephenson Harwood
19 For example, (i) the Defendants’ failed appeal of the granting of the CPO, which sought to have the claims struck out or summarily dismissed (which the Court of Appeal rejected in July 2022); (ii) amendments to the class definition; (iii) the addition of new defendants; (iv) the granting of a CPO in a further set of proceedings against the new defendants; and (v) a hearing to certify the settlement with Stagecoach South Western Trains Limited.
20 Which the CAT arguably subtly warned against, see paragraph 177 of the Judgment.
