Agents’ Mutual, which launched OnTheMarket, was not a ‘weak start-up’, the Court of Appeal was told, while it  described itself to judges as David to Rightmove’s Goliath.

Gascoigne Halman brought last week’s appeal following the Competition Appeal Tribunal’s ruling last year that OTM’s ‘one other portal’ rule was legal and did not infringe competition rules.

Gascoigne Halman argued that had the Tribunal known that OTM would drop its ‘one other portal rule’ when it listed, that would have made a difference to the judgment.

In the third and final day of last week’s hearing, Paul Harris, for Gascoigne Halman, argued that Agents’ Mutual was no weakling.

Instead, it had been “put together by some very well-funded and very well established agents in the market and had a big budget”.

Mr Harris added: “It’s not a small fry, weak start-up, as if it couldn’t look after itself.”

He was countering the argument put by Alan Maclean, representing Agents’ Mutual, that OnTheMarket had entered the property portal sector with no market power: “It was a start-up. It was David and there were two Goliaths.”

Mr Maclean argued that Gascoigne Halman could not demonstrate that the ‘one other portal’ rule was aimed at restricting competition.

Indeed, it was there to encourage competition in a market dominated by two key players.

The concept was to challenge the ‘effective duopoly’ of Rightmove and Zoopla.

Mr Maclean said that the Competition and Markets Tribunal had correctly examined the ‘one other portal’ rule in this context.

He also cited correspondence with the Competition and Markets Authority in support of the rules which it had been told about.

These also allowed only bricks and mortar agents to list at OTM.

While Gascoigne Halman may have had concern, the justification was for OTM to establish market share, said Mr Maclean.

“If Rightmove were doing it, that would be different, but OnTheMarket was the start-up David to Rightmove’s Goliath,” said Mr Maclean.

Mr Harris told the Court of Appeal that the ‘one other portal’ rule had been created specifically to “distort and disrupt the structure of competition in the market for at least five years”.

He also said that the ‘one other portal’ rule had since been largely abandoned, with new membership and listing agreements offered in the light of OnTheMarket listing on the stock exchange this February.

The Competition Appeal Tribunal had delivered its ruling the previous July, and Mr Harris said: “This [change] must have been known.” He argued that at the time of the Tribunal hearing, “it would have had a very material bearing”.

Mr Harris claimed that OTM, with its restrictions, had aimed to push Zoopla out of the market.

Mr Maclean countered that it was natural that Agents’ Mutual wished to become “number two in the market, nothing wrong with that, and no doubt when they get to number two” they’ll want “to get to number one, nothing wrong with that either”.

The Court of Appeal reserved judgment for a later date.

  • We are grateful to PaRR, a subscription news service,  for allowing us to condense its own much longer coverage of the case last week into our report above. PaRR delivers global intelligence, analysis and data on competition law, anti-corruption enforcement, cybersecurity/data privacy, and sector-specific regulatory change.