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.
When OTM V1 changed its fundamental status from mutual ownership to OTM V2 AIM PLC it chose to drop the One Other Portal Rule ……at that point, any V1 Member who Voted No to the change should have been allowed to walk away.
The shackling of V1 Members remains a monumental injustice. To unjustly shackle the very members (who loaned you start-up money and paid your monthly subscriptions) demonstrates your total disregard for those that supported you from Day 1.
Thus, it’s hard to believe anything that you say now.
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I still can’t understand why anyone would want to be on 3 portals personally.
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Agreed. 2 Portals seem to be the natural choice/fit. I dropped Zoopla because it was no loss to my business however I’m told it works well in some areas for some agents who naturally then select Zoopla over Rightmove. Elsewhere Rightmove works so other agents opt for them.
I want OTM to succeed because Rightmove are now a Dictator rather than an Advertiser for Estate Agents.
However, OTM should earn their portal place rather than force leavers to remain. If OTM make a success of it, agents who have left may well wish to rejoin.
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Absolutely surrey1. But perhaps, just perhaps, it may help lead to them loosing the case, as how can such a disgusting move ever be justified. These agents supported OTM in good faith, and are now getting punished for it. How is that good for and does it support competition?
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I’ve heard Ian Springett’s too busy counting his money and share certificates to talk to the V1 investors who’ve been hung out to dry.
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Can I ask where your evidence is for that comment. I would suggest you have no idea at all. Springett gets any payout after five years and nothing before?
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Remuneration Report – https://plc.onthemarket.com/wp-content/uploads/250074-OnTheMarket-AR.pdf
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??? David was zoopla. U killed zoopla and divided the problem into 3.
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He has a fair point
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