UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
certified as opt-out arises in scenarios where there would be no proceedings save on an opt-out basis. In addition, while the strength of the claim is usually to be a neutral factor in determining whether proceed - ings should be opt-in or opt-out, to the extent that it is taken into account, there needs to be a relevant connection between the strength of the claim and the decision made as to whether proceedings should go ahead on an opt-in or opt-out basis. The Court of Appeal also acknowledged that the existence of paral - lel individual or opt-in proceedings could be consid - ered to demonstrate the feasibility of opt-in proceed - ings and clarified that whether or not the proposed class representative is a pre-existing body, such as a trade union, should not be taken into account. Non- UK residents must opt in to proceedings, even where the CAT has granted a CPO on an opt-out basis. In Dr Sean Ennis v Apple [2024] CAT 58, the CAT gave judgment in an application for a collective proceedings order against Apple brought on behalf of app develop - ers that have sold apps and paid an allegedly unfair commission to Apple in respect of in-app purchases on Apple’s iOS platforms. The defendant argued that the proceedings should not be brought on an opt- out basis. However, the CAT concluded that bringing proceedings on opt-in basis would not be in the inter - ests of the class as a whole in this case: the fact that that the proceedings might be financially viable on an opt-in basis, did not overcome the impracticability of opt-in proceedings because most class members had relatively modest claims. The claim was certified on an opt-out basis as a result. Non-UK residents must opt in to proceedings, even where the CAT has granted a CPO on an opt-out basis. 4.3 Direct/Indirect Purchasers In the High Court, claims are based on the tort of breach of statutory duty of Chapters I/II of the CA 1998, and/or Section 2 (1) of the European Communi - ties Act 1972 (which imported into English law Articles 101 and 102 of the TFEU, to the extent applicable to pre-Brexit damage or conduct). Claims for damages before the CAT are based on Section 47A of the CA 1998 and/or Section 47B of the CA 1998. Section 47B forms the basis for collective actions, and allows both direct and indirect purchasers to bring claims for their
losses on a collective basis in the Competition Appeal Tribunal 4.4 Class Certification High Court In the High Court, there is no equivalent in England and Wales of the US-style (opt-out) class-action pro - cedure, nor is the certification process similar. In rela - tion to representative proceedings in the High Court, it is necessary for the claimant representing others who have the same interest in the claim to show that the “same interest” test is satisfied. The Court of Appeal’s judgment in Emerald Supplies Ltd v British Airways plc [2010] EWCA Civ 1284 has shown that this will be difficult in the context of follow-on damages claims. In relation to GLOs, an order can be made either of the court’s own motion or following a request from a claimant or defendant. GLOs are made where one or more claims raise “common or related issues”, a concept that is wider than the requirement that the persons have the “same interest” for representative proceedings. CAT The certification process for collective proceedings brought in the CAT has been heavily litigated. Under Section 47B of the CA 1998 (as amended by the CRA 2015), any collective proceedings may only proceed if the CAT makes a collective proceedings order. The CAT will make such an order if the person bringing the proceedings is someone it could authorise to act as the representative, and the CAT must also be satis - fied that the claims are eligible for inclusion in collec - tive proceedings. To be eligible, claims must raise the same, similar or related issues of fact or law and be suitable to be brought in collective proceedings. The collective proceedings must authorise the person who brought the proceedings to act as the representative; describe the class of persons whose claims are eli - gible for inclusion; and specify whether the proceed - ings are on an opt-in or an opt-out basis. The class of claimants must be comprised of those with eligible claims existing as at the date of the claim form and cannot include future claimants: see Alex Neill Class Representative Limited v Sony [2024] CAT 13, where the CAT ordered the CPR to amend the class defini - tion so that the relevant period ended at the date of
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