UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
consultation. The DBT Consultation makes significant proposals in relation to opt-out collective actions, including: • a tightening of the certification threshold; • permitting the use of damages-based agreements (DBAs), which would be subject to the same scru - tiny as litigation funding agreements (LFAs) at the certification stage; • introducing a presumption that funders receive payment at the point of a damages award, rather than after distribution; • exploring alternative redress schemes, includ - ing enhancing the existing CMA voluntary redress scheme, and the introduction of settlement offers with automatic cost consequences; and • considering an extended regime whereby full immunity from civil litigation damages would be granted for Type A leniency applicants. The DBT Consultation closes on 25 September 2026. Landmark cases England and Wales is a highly active jurisdiction with dozens of judgments issued in private antitrust litiga - tion. A handful of the key recent cases are summa - rised here. In July 2025, the court of appeal issued judgment in Phones 4U Limited v EE Limited and others (2025) EWCA Civ 869, an appeal by Phones 4u against the dismissal of its claim that it was the victim of collusive anti-competitive schemes involving senior executives of three mobile network operators and their parent companies between 2012 and 2014. Two grounds of appeal are of particular relevance to standalone cartel claims involving information exchange. At first instance, Roth J found that O2’s CEO was “sounding out” EE’s CEO as to whether, if O2 reduced supply volumes via indirect retailers, EE would not take up that volume – an invitation to collude by O2 – but accepted EE’s evidence that its CEO remained passive until the conversation moved on and that the remarks were “too vague” to remove EE’s uncertainty as to O2’s future conduct.
The court of appeal considered whether a passive response to disclosure of confidential information between competitors could infringe competition law and found it did not on these facts, with no error of law by the High Court. The court of appeal held that some reciprocity is required, which may be satisfied where a disclosure of future intentions is accepted or requested by the recipient. The conduct must at least be capable of reducing uncertainty, which the judge was entitled to find it did not here. The court of appeal also found that concertation requires an element of consensus depending on context: for an unanticipated “one-way” communication, whether a passive response amounts to tacit approval depends on the facts, and a failure to object will often be seen as such, even where the discloser derives something from an entirely passive reaction. The court of appeal also considered whether the “Anic” presumption – that undertakings participating in concerted practices and remaining active on the market are presumed to take account of information exchanged with competitors – can be rebutted by anything other than public distancing or a report to the competition authorities. At first instance, despite finding no “concertation”, Roth J concluded that EE had rebutted the Anic presumption by signing a new three-year deal with Phones 4u. The court of appeal found no error of law, holding that Anic also contains a further presumption: that par - ticipating in a meeting at which an anti-competitive agreement/concerted practice is concluded, without public distancing, is presumed to amount to partici - pation (the “participation” presumption). It held that public distancing is not essential to rebut the Anic pre - sumption, that the contrary view lacked authority and logic, and that the presumption applies only to those receiving information. Here, EE’s CEO conveyed noth - ing to O2’s CEO, so O2 gleaned nothing that could have influenced its conduct. Limitation There have also been important developments on limitation. The limitation rules in competition claims are complex and depend on:
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