UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
3.2 Typical Length of Private Antitrust Litigation The typical timetable for an antitrust damages claim is around three to five years, depending on many fac - tors, including the extent of disclosure, the number of witnesses and experts, whether the court or tribunal orders a stay, and whether applications are made for strike out/summary judgment or determination of pre - liminary issues. Related cases may also cause delays or applications for stays (eg, David Courtney Boyle & Edward John Vermeer v Govia Thameslink Railway Limited & Others (2021) CAT 38). Expedited trials may also be ordered in certain circumstances. Procedures for bringing claims on a group or collec - tive basis differ depending on whether such claims are brought in either the High Court or the CAT. High Court Collective claims have been brought in the High Court as representative actions. CPR 19.8 (1) allows a claimant to represent themselves and others with the “same interest” who have opted in to the action. Representative actions are typically difficult to bring in private antitrust litigation. In Emerald Supplies Limited v British Airways plc (2009) EWHC 741 (Ch), the High Court struck out a representative action on behalf of direct and indirect purchasers because inclusion in the class depended on the claim’s outcome and not all purchasers would benefit from the relief sought, given the need for direct purchasers to pass on the over - charge for indirect purchasers to benefit. The court of appeal upheld this, rejecting the claim as an attempt to engineer a class action and held that “same inter - est” requires enough certainty to constitute a repre - sentable class. Group litigation orders (GLOs) under CPR 19.22 are available where claims raise “common or related issues” – although they are rarely used in competi - tion claims. Allsopp v Bayerische Motoren Werke AG (2023) EWHC 2710 is a recent example: a GLO appli - 4. Class and Collective Actions 4.1 Statutory Basis
cation was made on behalf of 41,225 of approximately 125,000 claimants who had owned or leased BMW vehicles in the UK allegedly fitted with prohibited defeat devices, raising questions including whether the defendants breached Article 101 of the TFEU or Chapter I of the CA 1998. CAT Collective actions have been available in the CAT since October 2015 for follow-on and standalone antitrust damages claims, following the CRA 2015, on an opt-in or opt-out basis. Proceedings must be commenced by a person proposing to act as representative. The CAT may authorise a claim brought by a representa - tive on behalf of the class, who need not be a class member, if the CAT considers it just and reasonable for them to bring the claim. Collective proceedings will only continue if the CAT makes a CPO, where the CAT is satisfied the claims are eligible for inclusion in collective proceedings – raising the same, similar or related issues of fact or law. The CAT will also consider, among other factors: • whether collective proceedings are an appropriate means of fair and efficient resolution; • whether similar claims have already been com - menced by class members; • class size and nature; • whether individual membership can be determined; and • suitability for an aggregate award of damages. The CAT will consider whether the UK, and the CAT itself, is the appropriate forum. In James Daley Class Representative LLP v Apple Inc and Others (2026) CAT 23, the CAT granted permission for the class repre - sentative to serve Apple Inc (incorporated in the USA) and Apple Distribution International Limited (incorpo - rated in the Republic of Ireland) out of the jurisdiction, under Rule 31 (2) of the CAT Rules 2015. 4.2 Opting In or Out In making a CPO, the CAT must decide whether proceedings should be opt-in or opt-out. In Evans v Barclays and ors (2023) EWCA Civ 876, the court of appeal held that a claim being viable only on an opt- out basis is a powerful indicator for opt-out certifica -
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