UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
refer to 1.2 Recent Developments and 4.4 Class Certification for the underlying case law, including Waterside and • Evans . The Evans judgment has already prompted defendants to apply to decertify existing opt-out proceedings on the basis that they no longer meet the Evans test; however, the CAT rejected the first such application in Dr Sean Ennis v Apple Inc and Others (2026)CAT 55, finding that the claims remained relatively strong. • Distribution – distribution of damages is also likely to be a defining issue in the next phase of the regime. Following the distribution difficulties in Justin Gutmann v First MTR South Western Trains Limited and Another (2024) CAT 32, the CAT made clear in Waterside that distribution can no longer be treated as a matter to be addressed only after liability has been established. Instead, proposed distribution mechanisms should be considered and stress-tested as part of the certification analysis and cost-benefit assessment. In Waterside , certi - fication was refused in part because the CAT was not satisfied that the proposed distribution method would not effectively return damages to class members, indicating a shift in focus from whether loss can be quantified on a class-wide basis to whether compensation can realistically be deliv - ered to those harmed. This suggests that, mov - ing forwards, class representatives and litigation funders are likely to face increasing pressure to develop credible, creative and market-specific dis - tribution solutions from the outset, whether through loyalty schemes, customer databases, digital purchasing records, account-based payment sys - tems, or other mechanisms capable of efficiently identifying and compensating class members. The success of collective actions may therefore depend not only on establishing liability and loss, but also on demonstrating a practical and effective pathway for distributing damages to class members. • Merits judgments – since Le Patourel , the CAT has handed down two further significant merits judgments. In Justin Gutmann v Govia Thameslink Railway Limited and Others (2025) CAT 64, the CAT dismissed all abuse-of-dominance allegations against train operators over boundary fares, con - firming that competition law is not a general law of consumer protection. In Dr Rachael Kent v Apple
Inc and Apple Distribution International Ltd (2025) CAT 67, the CAT delivered the first final merits judgment won by a class representative under Sec - tion 47B of the CA 1998, ruling for the claimant on all aspects of her standalone abuse-of-dominance claim over Apple’s AppStore and awarding aggre - gate class-wide damages of around GBP1.5 billion (including interest); permission to appeal was refused in November 2025. A further judgment is awaited following the ten-week trial in • Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited and Oth - ers , which concluded in May 2026 and concerns alleged excessive pricing on the PlayStation Store. • Settlement – the Merricks/Mastercard settlement and the High Court’s dismissal of the funder’s judicial review challenge (see 1.2 Recent Develop- ments ) are likely to be an important reference point as further collective settlements move towards distribution, with the CAT continuing to scrutinise funding arrangements at the certification stage, as in Consumers ’ Association ( Which ?) v Apple Inc & Ors (2026) CAT 29. • Funding – the Litigation Funding Agreements (Enforceability) Bill(see 1.2 Recent Developments and 11.1 Litigation Funding )was not passed before the 2024 General Election, but the Civil Justice Council’s 2025 review recommended reversing PACCAR , and the government has reconfirmed its intention to legislate. As of the time of writing (Sep - tember 2026), no bill has been proposed yet. Looking ahead, two developments in particular are likely to shape the landscape over the coming year: the CAT’s judgment in Alex Neill Class Representa- tive Limited v Sony Interactive Entertainment Europe Limited and Others , which is awaited following the conclusion of a ten-week trial in May 2026 and will be a significant further test of the collective proceedings regime; and the outcome of the DBT Consultation, which closes on 25 September 2026 and could bring the most substantial reform of the opt-out collective actions regime since its introduction in 2015.
235 ANTITRUST LITIGATION 2026
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