Gascoigne Halman’s appeal against last year’s ruling that OnTheMarket’s ‘one other portal’ rule was not anti-competitive has been attacked as ‘unwarranted and without merit’.
The Connells brand is attempting to overturn the decision made by the Competition Appeal Tribunal (CAT).
Yesterday, a skeleton argument criticising Gascoigne Halman’s arguments was submitted to the Court of Appeal by legal representatives of OTM’s parent company Agents’ Mutual.
The document said Gascoigne Halman was “attempting to re-argue the merits of the case which the CAT determined after hearing extensive factual and expert evidence”.
The document rejects Gascoigne Halman’s claims put forward at court on Tuesday that the CAT judgement had mistakenly focused on the environment for a new market entrant.
It describes the allegations of error by the Tribunal as unwarranted.
Instead, the document argues, the Tribunal’s judgement assessed the legal and economic context for the ‘one other portal’ rule, and noted that Agents’ Mutual “was a weak new entrant without market power whose positions was weaker still by reason of the high barriers to entry in a two-sided market.
“In consequence, estate agents were under no compulsion to join AM and those that chose to do so retained the ability to advertise on a second portal of their choice.”
The document also notes that the CAT ruling found the ‘one other portal’ was pro-competitive as it would create a cheaper offering and meant established portals would “pay greater attention to the demands of estate agents subscribing or thinking of subscribing to Agents Mutual”.
There is also a rebuttal to Gascoigne Halman’s claims that OnTheMarket founder Ian Springett had not told the CAT that there were plans to drop the ‘one other portal’ rule, highlighting that it was stressed during the hearing that the rule would be kept under review.
The document said: “The fact that the need for the OOP rule to be revisited would therefore have come as no surprise to the CAT and it does not affect the conclusion as to what was necessary to achieve OnTheMarket’s entry at the time of launch.”
The document asks the court to dismiss the appeal and says Agents’ Mutual should be awarded costs of the case.
The hearing continues at the Court of Appeal and is due to finish today, with a judgement at a later date.