UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
tion and that – although claim strength is usually neu - tral – any relevant connection to that decision must be considered. The Supreme Court ((2025) UKSC 48) unanimously overturned the court of appeal’s deci - sion, holding that claim weakness is relevant against opt-out certification, reiterating the CAT’s broad dis - cretion, and reinstating the CAT’s refusal to certify on an opt-out basis. In Dr Sean Ennis v Apple (2024) CAT 58, on an appli - cation for a CPO brought by app developers alleging unfair commission on in-app purchases on Apple’s iOS platform, the CAT held that opt-in proceedings would not serve the class’s interests. The CAT found that financial viability on an opt-in basis did not over - come the impracticability of opt-in proceedings, given most class members’ relatively modest claims. The claim was certified on an opt-out basis. Following Evans v Barclays and ors (2023) EWCA Civ 876, defendants have sought decertification and variation of CPOs in existing collective actions, so far unsuccessfully: • in Dr Sean Ennis v Apple Inc and Others (2026) CAT 55, the CAT refused Apple’s application to decer - tify, finding the claims “relatively, even unusually, strong” and opt-out still appropriate for the whole class; and • in Professor Barry Rodger v Alphabet Inc and Oth - ers (2026) CAT 49, the CAT refused Google’s appli - cation to require the largest-claim app developers to proceed on an opt-in basis. Non-UK residents must still opt in, even where the Claims for damages before the CAT are based on Sec - tion 47A 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 to the CAT. 4.4 Class Certification High Court In the High Court, there is no US-style opt-out class- action procedure, nor a similar certification process. CAT has granted an opt-out CPO. 4.3 Direct/Indirect Purchasers
For representative proceedings, the claimant must show the “same interest” test is satisfied. The court of appeal’s judgment in Emerald Supplies Ltd v Brit- ish Airways plc (2010) EWCA Civ 1284 shows this is difficult in follow-on damages claims. GLOs may be made of the court’s own motion or on a party’s request, where claims raise “common or relat - ed issues” – a concept wider than the “same interest” test for representative proceedings. CAT The certification process in the CAT has been heav - ily litigated. Under Section 47B of the CA 1998 (as amended by the CRA 2015), collective proceedings may only proceed if the CAT makes a CPO, where it is satisfied that: • the representative could be authorised to act as such; and • the claims are eligible (ie, raise the same, similar or related issues of fact or law and are suitable for collective proceedings). The CPO must authorise the representative, describe the eligible class, and specify whether proceedings are opt-in or opt-out. The class must comprise those with eligible claims existing at the date of the claim form and cannot include future claimants. In Alex Neill Class Representative Limited v Sony (2024) CAT 13, the CAT ordered the PCR to amend the class defini - tion so the relevant period ended at the date of fil - ing, rather than final judgment or settlement, thereby excluding future claimants. Since the 2020 Supreme Court judgment in Walter Merricks CBE v Mastercard Incorporated & Ors (2020) UKSC 51, the bar to certification has generally been considered to be relatively low, with the vast majority of cases being certified. There have now been several instances where a CPO was refused: • claims against six water and sewerage undertak - ers, rejected as relying on infringements of a statu - tory regime remediable only by enforcement order from the water regulator;
227 ANTITRUST LITIGATION 2026
CHAMBERS.COM
Powered by FlippingBook