UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
Settlements Under the collective proceedings regime in the Com - petition Appeal Tribunal, any opt-out settlements must be judicially approved. The Tribunal may approve the settlement only if it is satisfied that its terms are just and reasonable. In May 2024, the CAT approved the second collec - tive settlement under the CRA 2015 in Justin Gut- mann v First MTR South Western Trains Limited and Another [2024] CAT 32. This settlement was between the Class Representative and the second defendant, Stagecoach South Western Trains Limited (SSWT). The Class Representative claimed that SSWT, along with the other defendants, abused a dominant posi - tion by, in effect, double-charging customers for part of the service provided to them. The CAT expressed concerns about the original settlement proposal including the feasibility for individuals of recovering damages and whether the proposals for unclaimed sums were appropriate. The parties revised the set - tlement to reflect the CAT’s concerns and this was then approved. In February 2025, the CAT gave an oral ruling approving the largest proposed settlement of a collective action so far in the collective action brought against Mas - tercard by Merricks. The claimants originally sought damages of GBP14 billion plus interest, bringing it to just under GBP20 billion claimed. The claim faced a number of hurdles along the way, with issues around limitation, causation and pass-on, ultimately narrow - ing the scope of the claim significantly. In Decem - ber 2024, a settlement agreement was reached. The litigation funder objected to the settlement. It argued that the settlement sum was too low and that Mr Mer- ricks should have extracted a higher sum, seeking to exert greater pressure on Mastercard to pay a higher amount. Despite this, the CAT found it to be just and reasonable. In May 2025, the Tribunal ruled on the pro - posed distribution of the GBP200 million. The Tribunal approved the proposal of Mr Merricks and Mastercard that: (i) GBP100 million would be ring-fenced for class members; (ii) GBP46 million would be ring-fenced as a minimum return to the funder (roughly equating to its actual expenditure); and (iii) a portion of the balance, depending on class take-up would go to the funder as profit, with the rest paid to charity. Despite strenuous
requirements of Rule 78 (1), and a failure to do so may prevent a collective action from being certified. In the circumstances of this case and following a hearing during which the PCR was cross-examined, the Tri - bunal was concerned that the PCR had acceded to the funder’s request to keep the terms of its funding confidential, including from the class members whose interests she was supposed to be representing and that she did not have a sufficient understanding of the funding agreements involved. The second failed application was in a case brought against six water and sewerage companies, Rob- erts v Thames Water and ors [2025] CAT 17, where the Tribunal rejected the claim as it relied on alleged infringements of a statutory regime to which the only remedy was by way of an enforcement order by the UK’s water regulator. Judgments In December 2024, the first liability judgment in col - lective proceedings was handed down in Le Patourel v BT [2024] CAT 76 . The CAT found that, while BT was dominant in the relevant market of standalone fixed voice services and its prices were excessive, the prices charged were not unfair. As a result, BT had not breached competition law (and thus no damages were awarded). The judgment is the latest in a line of cases which deal with the test for unfair pricing and largely followed the Court of Appeal’s judgment in CMA v Flynn Pharma and Pfizer [2020] EWCA Civ 339. The claimants were refused permission to appeal from the CAT [2025] CAT 10 and, in July 2025, the Court of Appeal refused permission to appeal. The judgment also made some obiter observations on the basis of the approach to quantum in unfair pricing cases. It rejected the suggestion that if BT’s prices had been found unfair, that there would have been a margin for pricing above the competitive benchmark before it would qualify as significantly and persis - tently above that benchmark. In doing so it relied on the CAT’s judgment in Dwr Cymru which said that a claimant showing where the line should be drawn (in terms of the counterfactual price) would be an almost impossible task that would involve the court redoing much of the work that had already been undertaken when establishing liability.
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