The Competition Appeal Tribunal decision that OnTheMarket’s ‘one other portal’ rule was not anti-competitive focused on the “wrong framework and irrelevancies”, the Court of Appeal has been told.
Connells brand Gascoigne Halman yesterday launched its appeal against last year’s ruling, with Paul Harris QC telling the court that the Tribunal had mistakenly focused on how a new portal could enter the market rather than on the “contractual restraints”.
Mr Harris argued that the ‘one other portal’ rule meant that OTM could grow through contractual restrictions rather than on merit. He said this was anti-competitive and “naked protectionism”.
He said: “The contractual restrictions disrupt the market by preventing [other] portals from having property content, thus preventing their lifeblood.”
Mr Harris added that it also restricted supply for estate agents.
He said the Tribunal had also failed to consider the way agents use portals to compete on service, adding that the rule “restricts competitive choice” regardless of whether it is up to an agent to sign up.
Mr Harris also questioned OTM’s argument – supported in the CAT judgement – that it would have been impossible to enter the market without the ‘one other portal’ rule, highlighting that this has since been dropped.
He said: “The CAT did not know that it is possible to act without the ‘one other portal’ rule as it is now being done by them [OTM].”
Judges queried whether this was relevant as the change had come later, but Mr Harris claimed that the timing brought OTM chief executive Ian Springett’s character and evidence into question as he had been giving evidence to the CAT “while considering dropping the one other portal rule”.
Mr Harris said this should have been disclosed at the time of trial.
The judges asked if the question of the ‘one other portal’ rule had become largely academic as it had since been dropped – when OTM floated on the stock market in February – but OTM’s legal representative Alan Maclean QC said some agents were still bound by it.
He said 1,671 firms remain on the old contracts, while 1,287 have moved on to the new ones, of which 863 have opted to use the one other portal rule.
Agents’ Mutual had defended the period of voluntary semi-exclusivity and had explicitly said that the business would be regularly monitoring whether or not it remained necessary, whether for competition or commercial reasons.
The hearing, where the onus is on Gascoigne Halman to convince the Court of Appeal judges that the judgment handed down by the Tribunal was flawed, continues and is expected to last until Thursday.
The report above covers only the opening hours of yesterday’s hearing.
Comments (24)
Maybe I’m jumping the gun but as Hillofwad77 mentions regime change-what if Connells Group lose this appeal; will there be a forced regime change at the top of the Connells food chain I wonder -it would make the “real” acquisition of GH probably the most expensive per branch in recent history ! we all await decision with great interest Mr Skipton-Mutual.
As Zoopla are part funding the appeal (allegedly) and Connells Group is not one for knee jerk reactions (possibly why its still turning a very tidy profit while its competitors lick their wounds) i think you suggestion is extremely unlikely.
Here here GPL. OTM have shafted all the Gold members including me. I have dropped the one portal rule and gone rogue but I also don’t want RM and Zoopla to be the only contenders in the field. I am greatly disappointed in OTM and dislike Ian Springett but even if they only serve to stop RM and Zoopla increasing fees they are at least doing something! Better than naught methinks.
Claris
I think you have highlighted the whole issue It’s a real quandary for Gold Members like you .Pull me-push me ,Damned if I do,damned if I don’t
OTMP are now in an embarrassing position having to defend a policy they have since dropped.There is inevitably going to be costs involved which is effectively transferred onto members ,reputational damage and likely adverse reaction with the SP further weakening their position to tackle RM and ZPL ,
Spiral of despair
It’s clear from some of the posters that Springer is not universally liked.!Regime change ?
Hillofwad71…..
Very little chance of Regime Change in my opinion. Ian Springett and his Clan have a vice like grip on what they see as “their potential pot of gold”, plus Ian’s getting paid £500,000k? annually. That’s the reason that Ian has that “permasmug” look every time one sees him ……he glides into a room as if he’s elevated just off the floor, and when he passes a mirror there is no reflection, in the morning as the sun begins to rise he quickly draws all the curtains and you can just hear the creak of the lid being closed on his OTM marker shaped coffin.
Peter Mandelson & Ian Springett?…….the same person?
Hey Ho, times are a changing, let’s see what the future holds for Our Industry.
Exactly why I won’t deal with these charlatans. We all moan about rightmove shafting everyone but can’t recall any court cases making you stay with them.
That’s true Russell121 …..Rightmove shafting everyone!
…..and, as we are witnessing now the drip, drip, drip of agents leaving Rightmove, it seems likely that drip will become a trickle, then a gentle flow …..and you can figure out the rest I’m sure.
I’m already successfully selling properties without Rightmove Advertising because it isn’t actually Rightmove that sells property, myself and my staff do that.
Rightmove’s day will come ……even Estate Agents have a breaking point.
It is here!
As a Day 1 OTM V1 Gold Member (I’m tired typing that! …….and many will be fed up reading it!!).
Anyway…… I was a huge OTM V1 Supporter which is well documented. Along with others at the time I even voiced the suggestion of Trial Free Memberships and supported dropping OOP rule as V1 membership was stalling.
That was ignored/pushed away by Ian & Co as unworkable? ……yet here we are?!!!
Moving on…. when the goalposts moved and OTM went V2, I wanted to leave, to have our original Loan (loan funds given to OTM by supporting members in the original 6 Million plus Fund raising) returned. I was happy to wish them well and walk away with no hard feelings. However, as well documented on here I remain shackled to OTM because I wouldn’t sign up to a New V2 Contract ……and my Company Loan to OTM was converted to Shares?! …..thanks for that??? ……and I’m still paying monthly until my exit date in 2019.
So, when one wonders why I resent elements of OTM the evidence is plain as to why I feel the way I do.
Yet? …… the Old Fashioned Estate Agent in me still wants OTM to succeed despite all the cr*p that has been dished out ……including those infamous Ian Springett Roadshows with the Golden Flim Flam Promises of mega investment & £5 Share Prices!
Rightmove DO NOT deserve the UK Estate Agency Industry’s business because they have not served their paying customers (agents), they systematically milked them and still do! …..perhaps more so now! Rightmove’s relationship with Estate Agents could have been much more positive on so many levels however it’s clear what we are to Rightmove.
Turning back to OTM …….I have the uneasy feeling that how they have acted so far is a fair example of how they will be down the line.
Sadly, for me, it’s self-interest….. which is perhaps not surprising as they are a Shareholder Business now and we have potential multi-millionaires just trying to get over the line to cash in on their options.
In my humble opinion, despite the in-built competitive nature of our business, Our Industry is crying out for Unity, not Trade Union style unity? …….Brand/Industry Unity promoting the real positives of High Street Estate Agency.
OTM have an opportunity to do something much, much bigger, and if done correctly Our Industry could genuinely embrace them …….however, it seems like an opportunity slipping away.
Well said!
Hopefully someone will call into question Rightmove’s ‘character and evidence’ in the near future.
“Mr Harris argued that the ‘one other portal’ rule meant that OTM could grow through contractual restrictions rather than on merit. He said this was anti-competitive and “naked protectionism”
Mr Harris ought to consider that a lot of agents did not join OTM because of the OOPR restriction; Digital and Marketing directors do not take kindly to being told what they can and cannot do, how they should or should not spend their budget.
For every agent who did originally sign up to the OOP restriction 3 didn’t. Its only now its gone is the growth occurring so facts are contradicting the point he’s making.
Complete shambles from this Ian Springit.
Whilst I want OTM to survive in order to take down RM. They not helping themselves.
When they dropped one other portal rule that should of applied to everyone, including existing agents.
Ian if you reading this, it’s best if you resign and let someone proper take this forward.
I have lost track. Is Zoopla involved in part-funding this appeal?
Is that thumbs down a ‘yes’?
Complete mess and an embarrassment to all involved.
At least Sprignett is finally being called out though.
Yep, I will sign as a gold member, love the idea of the OOPR, I will even promo it locally and in other media given the opportunity.
PS When we sell the company, I will hide, as going beyond that point, I think the whole idea was really **** and the OOPR stinks.
Which is the bigger dogs breakfast right now – the future of estate agency or Brexit?
And no money on marketing whilst this is going on.
Lemmings!!!!
The infamous “One Other Portal” Rule…..
“OTM’s legal representative Alan Maclean QC said some agents were still bound by it. He said 1,671 firms remain on the old contracts, while 1,287 have moved on to the new ones, of which 863 have opted to use the one other portal rule.”
Finally! We get the real numbers!
Amazing in court for this on one hand but dishing out free subscriptions on the other.
Think CEO lucky the hedge funds investing probably think onmarket is a free estate agent like purplebricks lol…
Members have 2 choices if om can’t get the corporates to join.
1)Close shop and allow zoopla to carry on as they were before.
2) nope , I’ve got nothing.
Makes me laugh “opted to use the one other portal rule” “Opted”! I think most would have OPTED not to if they could have WALKED AWAY… Just another year to go then I’m out.
yep .Me too.I am counting down the days until I can walk away ,Dump the shares and stick two fingers up at OTM.They have behaved appallingly.My Fault for not reading the small print in their grossly unfair contract. After the way they have treated us I would give my right eye to have just five minutes with Mr Springett alone up a dark alley.
The remaining ones who voted no to being a PLC, and haven’t either left since, or have moved to a new contract, I expect with a free period and shares.