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Agents’ Mutual v Gascoigne Halman

Thursday 13 July 2017

The Competition Appeal Tribunal has found in favour of Agents’ Mutual in relation to the competition issues arising in the legal proceedings with Gascoigne Halman.

The long-running case between the online property portal and Connells owned estate agency concerned Agents’ Mutual alleging breach of contract by Cheshire based Gascoigne Halman, by not adhering to its controversial 'one other portal only' rule. The rule dictates agents listing properties on OnTheMarket can only advertise on either Rightmove or Zoopla, but not both.

The Competition Appeal Tribunal rejected Gascoigne Halman’s arguments that OnTheMarket's ‘one other portal’ rule was anti-competitive, saying that the rule was in fact part of arrangements which were pro-competitive. The tribunal also found that “the rule did not form part of a wider concerted practice to ‘boycott’" its rivals and Gascoigne Halman's argument was not valid on that account.

At a case management conference, Gascoigne Halman were ordered to pay an interim sum of £1.24 million within a fortnight, and the funds that Agents’ Mutual had to pay into court last year in the event of its losing the case are being returned. The Honourable Mr Justice Marcus Smith said the figure represented the minimum cost that would be incurred.

As part of their contractual agreement, Gascoigne Halman must continue to list on OnTheMarket and pay its listing fees, as well as comply with the ‘one other portal’ rule. 

Paul Smith, CEO of Spicerhaart and an OnTheMarket member company, said:

"This judgment draws a line under this protracted matter and allows Agents' Mutual, and its member agencies, to move forward together.

"Indeed, the judgment confirmed that rather than being anti-competitive, Agents' Mutual has had the opposite effect, providing crucial competition to the major portals.

“This case underlines the need for all proper estate agencies, irrespective of size, to join force in further developing OnTheMarket as a leading portal which works for them and retains the value of listings and fees within the industry."

Ian Springett, chief executive of OnTheMarket, commented:

"The two largest incumbent portals continue to use agents’ hard-won property listings and their ever-increasing fees to generate super profits for their shareholders at the expense of their agent customers and they are defending their duopoly position vigorously. However, with an excellent online platform, the sustained support of thousands of high quality agents and a highly experienced team, OnTheMarket.com is well positioned to create a genuine alternative market-leading portal for agents and consumers alike.

"We are pleased that the Tribunal has confirmed the position maintained consistently by our Board that Agents’ Mutual’s strategy for entry to the portals market has been pro-competitive both in object and effect and that the business is operating within the law. The Tribunal has dismissed the challenge from Gascoigne Halman that Agents’ Mutual and its Members have behaved illegally or anti-competitively."

A spokesperson for Zoopla said: "This outcome doesn’t change anything as far as we’re concerned. We welcome competition based on innovation and performance."