UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
objections from the funders, the CAT commended the plan which it found sought to achieve the maximum take-up of a reasonable sum by class members. Funding Following the Supreme Court’s judgment on 26 July 2023 in Paccar Inc and Ors v Road Haulage Asso- ciation Limited and UK Claims Limited [2023] UKSC 28, Litigation Funding Agreements (LFAs), in which the funder’s return is a share of damages ultimate - ly awarded to the claimant, are now categorised as Damages-Based Agreements (DBAs) which are not enforceable if they do not meet the requirements set out in the applicable regulations, such as capping the share of winnings at 50% and being on a no win, no fee basis. Most LFAs have now been updated to work around this ruling, with provisions such as recovering a multiple of the funds committed being applied. In March 2024, the UK government announced the Litigation Funding Agreements (Enforceability) Bill, which sought to reverse the decision of the judgment on third-party litigation funding ( R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28). While this bill was ultimately not passed prior to the 2024 General Election, the Civil Justice Council 2025 review has advised that this decision should be reversed, and so we await to see if legisla - tive reform will be introduced to address this. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Claims for damages arising from a breach of UK or EU competition law can be brought in the High Court (either in the Chancery Division or the Commercial Court) or before the CAT. In the High Court, claims are based on the tort of breach of statutory duty of Chapters I/II of the UK Competition Act 1998 (CA 1998), and/or – for conduct occurring prior to Decem - ber 2020 – Section 2 (1) of the European Communi - ties Act 1972 (as preserved by Section 1 of the EU (Withdrawal Agreement) Act 2020), which imported into English law Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Claims for damages before the CAT are based on Section 47A
CA 1998 and/or Section 47B of the CA 1998. Section 47B CA 1998 forms the basis for collective actions before the CAT. Standalone and Follow-On Claims Claims may either be on a “standalone” or “follow- on” basis. In standalone claims, the claimant must establish: (i) the anti-competitive conduct of the defendant(s); and (ii) that the defendant’s/defendants’ behaviour caused loss to the claimant. In follow-on actions, the claimant may rely on a deci - sion by a UK competition authority (eg, the UK’s Competition and Markets Authority, or CMA) or the EC (provided it was made prior to 31 December 2020) to find an infringement of competition law. Provided that the decision is final (ie, all appeals or time limits for making appeals have been exhausted), it will be binding on UK courts, and the claimant is not required to prove the anti-competitive conduct as they would be in a standalone claim. Findings and decisions by EU member state competition authorities prior to 31 December 2020 are considered prima facie evidence of an infringement. 2.2 Courts Specialist Courts Standalone and follow-on claims may be brought in either the High Court or the CAT. Comparison Between the CAT and the High Court The CAT is a specialist tribunal which has its own rules and procedures, as well as specialist judges. The CAT hears cases in panels which typically consist of a High Court judge (as chair), and two other members who may be lawyers, judges, and relevant specialists such as economists or accountants. Proceedings in the High Court are typically presided over by a single judge who may or may not have specialist competition law expertise. The powers of the High Court and the CAT are broadly similar for the purposes of typical competition pro - ceedings; both can make orders for interim measures such as injunctions, and neither has a limit on the compensation it can award. However, only the CAT can hear collective actions initiated under Section 47B of the CA 1998. In the High Court, the civil procedure
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