The barrister representing Agents’ Mutual, Alan Maclean QC, yesterday claimed that OnTheMarket’s market entry represented an injection of competition into the property portal market. His argument was rejected by the other side (see following story).
Alan Maclean stressed that the burden was on Gascoigne Halman to prove it had had competitive damage as a result of the ‘one other portal’ rule.
Mr Maclean yesterday made his final arguments in the case, heard this month by the Competition Appeal Tribunal, which has been looking into possible competition issues.
Mr Maclean said that Zoopla was ‘calling the shots’ behind Gascoigne Halman’s case. The claim was emphatically denied by Paul Harris, the QC for Connells’ brand Gascoigne Halman.
Mr Maclean said that Gascoigne Halman had “abandoned the allegation that the OOP rule has the effect of restricting competition in local estate agency markets and the Tribunal won’t have forgotten what we call the concession letter which also abandons the effect case on one of the other restrictions as well, namely the bricks and mortar restriction”.
He noted that “Gascoigne Halman [still] continues to allege the OOP rule has the object of restricting competition.
“That is on the basis that OOP restricts one key parameter of competition, namely the freedom to choose which portals [they use].”
He added that the tribunal had to “have regard to the economic context” where there were “two very large portals, Rightmove and Zoopla” that were used by most estate agencies.
Mr Maclean argued that, prior to OTM’s entry into the market, that freedom to choose was not an important parameter, because of the relative lack of choice.
“The truth is there were only two portals, the rest were little and insignificant. We know, it’s common ground, that most agents felt compelled to list on both of them.
“My client’s launch has not reduced the opportunities for agents to differentiate themselves or in any way limit their output. On the contrary, it has increased the opportunities for differentiation.”
“It has enabled agents to offer a wider array of choices to customers.”
He added that “[Agents’ Mutual] members who were listing on one of the incumbents can still do so in combination with OTM”.
He said OTM’s entry “demonstrates an injection of competition into the market”.
Mr Maclean noted that the “burden is on Gascoigne Halman” to show an adverse effect on competition in an relevant market..
He also dismissed expert witness David Parker’s analysis, saying it did not take account of other factors behind increases in cost-per-lead, such as the design of a particular portal. [David Parker was expert witness for Gascoigne Halman.]
He said the tribunal must be satisfied there were no other factors which could have “led to a change in cost-per-lead”.
He also pointed out that Mr Parker’s analysis was not based on a level of statistical significance “usually employed by economists”.
He said: “In short, Mr Parker’s empirical analysis simply does not demonstrate the required causal link between OTM entering the market with the OOP rule and the alleged increase in Rightmove’s prices to make good Gascoigne Halman’s allegation of adverse effects on the portal market.”
He added: “We know Zoopla is really calling the shots [behind GH’s case].”
Addressing the alleged boycott of Zoopla, Mr Maclean said: ‘
Addressing the alleged boycott of Zoopla, Mr Maclean said: “They have put forward no witness evidence whatsoever from member firms of a boycott.”
He said Gascoigne Halman had made allegations that “agents had coordinated to join OTM, but joining doesn’t involve a collective boycott”.
He said that any property portal needs a critical mass of agents.
He said: ‘That’s true of Rightmove, Propertylive, and is key to the growth of Zoopla.”
Mr Maclean noted that one of the emails Gascoigne Halman sought to rely on as evidence of a boycott had actually proposed dropping Rightmove, and not Zoopla.
He also noted that Mr Springett reminded representatives of other agencies that they should be “careful about getting involved in any potential boycott of any other portals”.
Mr Maclean addressed a comment by Mr Springett that “We must avoid any evidence of Agents’ Mutual leading any collective boycott”, which he said Mr Harris had taken to have a sinister meaning.
But Mr Maclean asked: “How else is he supposed to express himself?”
He noted that Mr Springett had previously “given a warning against collective conduct”.
He said Mr Springett was simply expressing the view that Agents’ Mutual should not get involved in any such discussions.
He concluded that Gascoigne Halman’s case had not been “made good. There is not collective boycott.”
He said: When Connells came along to buy Gascoigne Halman, it should have spotted this clause as it did, as Mr Livesey confirmed that it did, and it should have known that the clause was there, and it should have been able to take such advice as it wanted as to what the implications would be of proceeding with the purchase on that basis.
What they appear to have done is proceeded on the basis either — well, we know that they proceeded on the basis that they believed Mr Springett wouldn’t stand and fight — you remember the email exchange that I took Mr Livesey to. They wanted to get Gascoigne Halman on to Zoopla. That was the first thing, they wanted him on to Zoopla,
and they didn’t think that Mr Springett would stand and fight.
In reply, Mr Harris said that Mr Maclean’s remark that Zoopla was “calling the shots” should be withdrawn or dismissed by the tribunal.
Mr Justice Marcus Smith said that the tribunal would attempt to deliver its judgement as soon as possible, but gave no indication as to a specific time-frame.
The case centred around the OOPr, a heavy unfair restraint that was structured against the goodwill intentions of EU Article 101 and the Competition Act 1988.
It’s not so much a case that Zoopla ‘called the shots‘ in the case, but the fact AM/OTM ‘fired the shots’ in the first place.
As a small digital platform for agents, INEA is glad that bigger companies such as Connells and Zoopla funded, defending the unfair structure.
Lets hope the judges now complete their findings, whichever way they rule. Lets hope service providers to agents also learn that they need to look into what can and can’t be done when providing platforms that innocent agents engage with.
Compliments to PIE and Ros for well documented reporting throughout the trial.
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Mr Mealham
I have twice asked a question – twice you have dodged it.
But being a tenacious sort, I simply ask once again:
What do you honestly expect this entire sorry episode in our industry’s history – whatever the decision – will have achieved for you, personally or professionally?
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‘Disliking’ the question don’t make it go away…
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I didnt dislike it PeeBee. Here is my response to you again
INEA was placed on the OOPr ban.
An agent was likely to do the no. 1 or 2 being Z or RM and OTM. As such we became very excluded.
OTM wrote to many of our members saying they had to take their listings down from us. I also voiced re online only agents. I know some good ones that couldnt have joined if they had wanted OTM.
I hope the above answers you.
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I didn’t say you ‘Disliked’ it, did I?
Sorry – but your response doesn’t answer the question. Didn’t even come close.
Are you saying that IF the OOPR is dropped then you expect you will have a flood of new eager Memberlings to your ‘Network’ and ‘Portal’ from OTM?
Are you thinking that OTM will welcome you and your happy band of MLSites with open arms and smiling eyes?
What ARE you expecting, thinking or ‘seeing’ as the likely result, Mr Mealham?
I can’t see a bl00dy thing through the smog from the bridges you have burnt beyond all recognition…
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Ive responded PeeBee. We were placed in an unfair position where the OTM contract meant INEA became an wxclusion to 1/3 of UK agents.
We stood our corner.
If the judges find against OTM you may find we can trade and flourish, whilst AM/OTM may lose its OOPr or at worst for them It may even end closing alrogether.
You have my thoughts. Fosus should be on the story and not INEA please.
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Wouldn’t the case for anti competitive restrictions have been better coming from INEA than an agent who signed up to the restrictions but then changed their mind?
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I am strangely actually interested to know how many agents were forced to drop, what was it INEA? to join OTM because, from where I am, firstly I had never heard of it.
Trevor are you not just feeling delusions of grandeur even suggesting it made some banned list!?!
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The focus should be about the story RealAgent else PeeBees about INEA gets continued and i’ll be accused of advert pushing. So best to focus on the OTM and GH’s final court responses.
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I think the cost of taking something like this to court would involve many, many £zero’s Robert.
All said we hold letters telling member agents that they had to come off from us and take down their listings that display the OTM logo’s and names of OTM representatives.
If we did go to court, our evidence is black and white in our favour.
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“Fosus should be on the story and not INEA please.”
Says the man whose post at 10:06 – BEFORE I asked my question for the third time of asking – stated “As a small digital platform for agents, INEA is glad that bigger companies such as Connells and Zoopla funded, defending the unfair structure.”
The same man who now says “the OTM contract meant INEA became an wxclusion to 1/3 of UK agents.”
That would be the same “1/3 of UK agents” who prior to OTMs inception had not joined **** (name omitted upon the above request), I assume?
“If the judges find against OTM you may find we can trade and flourish, whilst AM/OTM may lose its OOPr or at worst for them It may even end closing alrogether.”
Tell you what – I’ll not wazz on your firework. I’ll just leave you and other readers believing that thought, shall I?
You do believe it… don’t you?
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If you had gone to the court case on one of the days I did. Defence made a great remark along the lines that the OOPr hindered growth of existing portals and new entrants.
So if XYZ portals started tomorrow and got added to the OOPr, then this would be unfair.
Equally, if agents on RM and Z, pre OTM launch had signed 5 year OOP tie in’s with RM or Z it would have blighted AM/OTM from initial entry.
I think readers are wise enough to make up their own thoughts on your questions/your observations, the way YOU word things and how others respond.
You can’t beat the truth PeeBee. You also shouldn’t hide behind Pseudo’s so people know who you are to know what angle your view is coming from.
For all we know, you may be an office junior with spare time on your hands.
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“For all we know, you may be an office junior with spare time on your hands.”
Looks like you got me in one – doesn’t it?
That being the case – it’s fairly well documented here on EYE and EAT before it that you’ve had your @r$e well and truly handed to you on a plate several hundred times in the last six or seven years by a lowly (in your eyes, clearly) office junior who after those six or seven years apparently hasn’t even been able to step up a grade – the idea of which doesn’t really do you a lot of favours to admit…
…now does it?
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Personal comments should be kept aside and kept polite.
The forum is for comments on the story.
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You want polite? Here’s polite for you – as all I have to say on that matter is
‘After you’, Mr Mealham…
AFTER YOU.
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Someone’s going to be very, very disappointed or breath a sigh of relief, which will it be Trevor as you backed yourself into a corner a long time ago?
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The industry waits with baited breath for the outcome….
In other news, I have houses to sell!
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