UK Trends and Developments Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
ments – eg, in Boyle v Govia Thameslink Railway Ltd & Ors [2026], where the CAT ordered proceedings to be decertified unless the claimant secured necessary litigation funding (as well as replacing the deceased class representative). As noted above, the distribution of funder returns from settlement proceeds is also becoming a key consideration for the CAT, following the judgment of the High Court in R ( Innsworth Capital Ltd .) v Com- petition Appeal Tribunal [2026] EWHC 1393 (Admin) confirming that it is within the CAT’s “wide powers” as a specialist tribunal to reach conclusions on just and reasonable return for funders. Consultations In 2025, the government ran a consultation on the operation and impact of the opt-out collective actions regime in particular: (i) access to, and the framework for, funding cases within the regime; (ii) the scope and certification of cases; (iii) ADR, settlement and damag - es; and (iv) the distribution of funds. The consultation attracted more than 100 responses, with responses focusing on key issues such as access to collective actions and funding, the scope and certification of claims, alternative dispute resolution mechanisms and distribution of damages. On 17 July 2026 the Department for Business and Trade published a further consultation, “Swifter and Simpler Competition Redress, Regulatory Appeals and Competition Enforcement” (the “DBT Consulta - tion”), seeking views on more substantial reforms to the collective action’s regime, building on the 2025 consultation. The DBT consultation makes significant proposals, including: • a tightening of the certification threshold; • permitting the use of DBAs which would be subject to the same scrutiny as 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 and automatic cost consequences; and
• considering an extended regime whereby full immunity from civil litigation damages would be granted for Type A leniency applications. The DBT consultation will close on 25 September 2026. The future of competition collective actions Certification is likely to remain a central battleground for collective proceedings. Following the Supreme Court’s decision in Evans , clear boundaries on when opt-in proceedings are practicable are yet to emerge, although recent cases are beginning to provide guid - ance. For example, the Dr Maria Luisa Stasi v Micro- soft Corporation , Microsoft Limited & Microsoft Ire- land Operations Limited [2026] CAT 34 proceedings were certified shortly after Evans , and provided useful points as to why opt-out was appropriate in that case. A broad framework appears to be developing: • low-value, high-volume consumer claims are likely to remain opt-out because opt-in participation is impracticable, although they face increasing scru - tiny over distribution; • high-value claims involving smaller classes are more naturally suited to opt-in proceedings; and • medium-value claims are likely to become the main battleground, with defendants arguing that class members can realistically be identified and encour - aged to participate. Looking ahead, a distinction may emerge between consumer claims, which continue to follow the Mer- ricks approach and focus heavily on distribution issues, and commercial claims, which are more influ - enced by Evans and the opt-in versus opt-out analy - sis. If implemented, the DBT consultation proposals could further formalise this split, making the next wave of collective actions an important test of how the regime develops in practice. The distribution of damages will also likely be a defin - ing issue in the next phase of the collective actions regime. Following the distribution difficulties encoun - tered in Gutmann , the CAT made clear in Waterside that distribution can no longer be treated as a matter to be addressed only after liability has been estab- lished. Instead, proposed distribution mechanisms
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