Collective Redress in the UK: Current Trends in the Collective Proceedings Regime

The opt-out collective proceedings regime in the UK is becoming more established, with the Competition Appeal Tribunal (CAT) increasingly able to draw on a weight of authorities in determining issues that arise over the life cycle of a collective action, from carriage disputes and certification through to the approval of collective settlements and arrangements for distribution. It has taken time for collective actions in the CAT to progress to trial, but there are now three judgments in Le Patourel, Gutmann and Kent that provide guidance on the Tribunal’s approach to the determination of these actions.

The regime has been subject to scrutiny about who benefits from collective actions, how distribution can deliver redress to class members, and whether the system delivers measurable value for the individuals and businesses in whose interests it purports to operate. Yet the decision in Kent, in which the Tribunal found unanimously in favour of the class representative, determining that Apple had abused its dominant position by unlawfully excluding competitors and charging inflated fees, resulting in losses of around GBP1.5 billion over a ten-year period, provides tangible evidence that the regime can deliver benefits for class members and that private enforcement of competition law infringements can act as a complement to the actions of regulators.

Presently, the regime is limited to competition law claims, and it remains to be seen whether the outcome of the UK government’s consultation on the future of the opt-out regime will result in the regime being broadened or constricted. The representative action procedure under CPR r. 19.8 is one of several alternative routes to collective redress; however, thus far, attempts to use that procedure on a bifurcated basis as envisaged by Lord Leggatt in Lloyd v Google, with issues of liability determined collectively but quantum issues determined individually, have largely been unsuccessful.

This guide provides an overview of some of the key trends shaping the regime’s trajectory.

The contrasting decisions on excessive pricing claims in Le Patourel and Kent

The case of Le Patourel v BT was the first trial of opt-out collective proceedings in the UK. Mr Le Patourel sought damages of GBP1.1 billion on behalf of a class of over 3.7 million BT customers. He alleged that BT had a dominant position in the market for unbundled residential telephone landline services and abused that position by charging “unfair” prices. In its judgment dated 19 December 2024, the Tribunal dismissed the claim. The Court of Appeal refused permission to appeal.

In Le Patourel, the class representative had what the Court of Appeal called “[a]t face value … an attractive case”. Notably, Ofcom had provisionally found that BT was overcharging its customers, and BT agreed to take remedial action. Yet despite that background, and notwithstanding that Mr Le Patourel successfully established that BT occupied a dominant position in the relevant market and charged excessive prices relative to the competitive benchmark, the claim nevertheless failed; the Tribunal ultimately determining that the prices charged by BT did bear a reasonable relation to the economic value of standalone fixed voice services, such that they were not unfair.

If the decision in Le Patourel had a chilling effect on funders’ appetite to fund collective actions generally (or unfair pricing claims specifically), the decision in Kent v Apple could militate in the opposite direction. In October 2025, the Tribunal determined that case in favour of the class representative, Rachael Kent, holding that Apple abused its dominance in iPhone operating system (iOS) app distribution and in app payments by charging excessive and unfair commissions of up to 30%, which were, to some extent, passed on to consumers in the form of higher prices. The Tribunal also found that Apple engaged in exclusionary conduct that reserved key distribution and payment activities to itself, to the detriment of rivals, and foreclosed competition, allowing Apple to charge app developers higher commissions. In consequence, an estimated 36 million UK class members could be entitled to roughly GBP1.5 billion.

Take-up of collective settlements and damages awards

There has been intense scrutiny as to whether the benefits of the collective proceedings regime are being realised by class members. The distribution of claim proceeds following the settlement of proceedings brought by Mr Justin Gutmann (as class representative) against Stagecoach underscores a central challenge: how to convert headline settlement sums into meaningful, distributed value for consumers. Stagecoach agreed to make up to GBP25 million available to class members as part of the agreed settlement, but class members ultimately claimed just over GBP200,000 by the January 2025 deadline (ie less than 1% of the available funds).

Similarly, the settlement reached in the opt-out collective action brought by Mr Walter Merricks (as class representative) against Mastercard attracted considerable scrutiny. The settlement of GBP200 million that was ultimately agreed was a fraction of the original headline claim value of GBP14 billion and was described by the Tribunal as being “very far from a success for a class of some 44 million claimants”. Despite that conclusion, the Tribunal accepted that the settlement was in the best interests of the class when viewed against the significant risks in taking the claim to trial; risks made manifest by the failure of the recent claims in Gutmann (against the non-settling defendants) and Le Patourel.

The decision in Kent provides a useful counterpoint; as the first “big tech” class action to reach trial before the Tribunal, Dr Kent’s victory, and the possibility that distribution can be achieved using Apple’s own infrastructure and/or purchase history data, suggest that the regime can deliver collective redress for UK consumers affected by anticompetitive conduct.

Comparative experience also helps to calibrate expectations. Evidence from other jurisdictions with more mature class action regimes shows that low take-up rates are by no means unique to the UK and are not (solely) attributable to the regime’s relatively nascency, and the limited understanding that consumers and businesses in the UK have of the regime and its potential benefits. In the UK, as in other jurisdictions, low individual claim values, limited awareness and complex claiming processes can all contribute to reduced participation.

It is safe to assume that the Tribunal will remain focused on distribution, and will be keen to ensure that class representatives have evaluated all viable means for ensuring that a damages award is effectively distributed. In practice, this can lead to lengthy debates over distribution mechanics, administrative costs, funder returns and any cy près allocations, with the Tribunal requiring evidence that the interests of class members are adequately protected by the proposed arrangements.

Stakeholder entitlements and the Tribunal’s supervisory jurisdiction

The Merricks settlement also exposed significant tensions between different stakeholders. In approving the settlement, the Tribunal clarified that the “just and reasonable” test should be assessed solely by reference to the interests of class members. It does not extend to the interests of funders, lawyers or other stakeholders.

In Merricks, the litigation funder, Innsworth Capital, had invested between GBP40 and GBP45 million in the proceedings. Innsworth sought a minimum return of GBP179 million, pursuant to the terms of the litigation funding agreement with Mr Merricks, equating to more than four times its deployed capital. The Tribunal considered this level of return “wholly disproportionate” given the outcome achieved. Exercising its overarching, supervisory jurisdiction, the Tribunal limited Innsworth’s return to approximately GBP68 million, representing a multiple of around 1.5 times its investment.

The case demonstrates that the Tribunal will interfere with the commercial arrangements agreed between a litigation funder and class representative where it considers those arrangements not to be in the interests of class members. A class representative cannot fetter the Tribunal’s power by conferring on a funder a guaranteed minimum return inconsistent with the interests of the class.

Whilst this might be said to safeguard the interests of class members, it also introduces uncertainty for litigation funders, who cannot be assured that the contractual terms they agreed at the outset of a case, including their return on their investment, will be respected at the distribution stage.

Further, the Tribunal has determined that it has jurisdiction to intervene in commercial arrangements between stakeholders – the litigation funder, after-the-event (ATE) insurers, solicitors, counsel etc – and that it will exercise that jurisdiction in appropriate circumstances. In Gutmann, following distribution of the available settlement proceeds to class members, the Tribunal convened a ‘stakeholder entitlements’ hearing to determine how to allocate the remaining undistributed damages between stakeholders, and whether there should also be a payment to charity. The Tribunal held the proceedings were overall “not a success”, given the very low rate of take up relative to the value of the settlement and the costs incurred in the proceedings, and exercised its discretion to vary the amounts distributed to stakeholders relative to their respective contractual entitlements.

Certification and carriage disputes: rigorous early-stage oversight

Certification

The Supreme Court’s decision in Merricks determined that there is a “low threshold” for certification of collective actions. However, the Tribunal’s decision in the case of Riefa, in January 2025, demonstrated that the Tribunal will not hesitate to refuse to certify a claim where it is unpersuaded that a class representative meets the authorisation condition.

The proposed class representative in that case, Christine Riefa Class Representative Limited (a special purpose vehicle, of which Professor Riefa was the sole director and shareholder), filed an application to commence opt-out collective proceedings against Amazon and Apple on behalf of all those who had purchased Apple (including Beats-branded) electronic products at retail level in the United Kingdom during the claim period. Having considered Professor Riefa’s written evidence, filed in support of the application, the Tribunal expressed concerns regarding Professor Riefa’s understanding of the litigation funding agreement to which she was party; in particular, Professor Riefa erroneously stated that the agreement provided for the funder to be paid from undistributed damages.

Given those concerns, the Tribunal granted the defendants’ application for permission to cross-examine Professor Riefa. The cross-examination did not dispel the Tribunal’s concerns; on the contrary, the Tribunal concluded that Professor Riefa had failed to demonstrate a sufficiently strong understanding of the arrangements she had entered on behalf of the proposed class representative and therefore did not meet the authorisation condition for certification. The decision in Riefa emphasises that a class representative cannot be a mere figurehead; it is critical that they demonstrate a capacity to act robustly and independently in the interests of class members.

The key takeaway for prospective class representatives is that they must explain how they satisfied themselves that the litigation funding arrangements into which they have entered are in the best interests of the class. Class representatives must anticipate that challenges to certification may delve into funding and insurance arrangements, class definition, the suitability of the class representative, distribution mechanics and the proposed expert methodology for establishing loss on a class-wide basis, amongst other issues.

In parallel to, and following, the Tribunal’s indications in Riefa, there is a growing trend of trade associations and industry organisations stepping into the role of class representative. These representative bodies often have direct relationships with the proposed class members or a history of advocating for the interests of the proposed class. Examples include applications for collective proceedings orders made by Which?, the UK’s leading consumer rights organisation, against Qualcomm and Apple, and by the British Independent Retailers Association (BIRA) against Amazon. Although BIRA failed to prevail in a carriage dispute, the Tribunal indicated in its carriage judgment that, all else equal, it considered “a long-established trade association representing many members of the class to be preferable as the class representative”.

Carriage disputes

As the regime matures, carriage disputes between competing proposed class representatives – ie, rival applications for collective proceedings orders, alleging the same infringement on behalf of the same class – have emerged as an ongoing challenge. Notwithstanding the Tribunal’s firm indication that carriage disputes are to be discouraged, rival class representatives continue to initiate parallel proposed collective proceedings in the hope that their application will be preferred and permitted to proceed to a certification hearing.

The carriage dispute between BIRA and Professor Andreas Stephan, each seeking to represent a class of UK-based merchants in proposed collective proceedings against Amazon, illustrates these challenges. The claims were brought in June 2024, and the carriage dispute required a three-day hearing in November 2024 and was followed by a judgment ruling in favour of Professor Stephan in January 2025. One of the reasons the Tribunal awarded carriage to Professor Stephan despite BIRA’s status as a well-established trade association was that Professor Stephan’s claim was broader, covering five distinct proposed abuses rather than two. The Tribunal found that Professor Stephan’s broader claim was “more consistent with the goals of access to justice by capturing more viable claims”. However, the decision also underscores the importance of a clear expert methodology for establishing causation and estimating loss on a class-wide basis. A broad class definition with a weak or under-developed methodology may be less favoured than a narrower but more robust claim.

The Tribunal has moved away from “rolled up” hearings that seek to determine carriage and certification concomitantly. However, carriage disputes continue to demand significant upfront investment, creating a de facto pre-certification stage that tests the applications for certification, often to the benefit of defendants who may remain uninvolved, and materially increases the costs incurred by prospective class representatives.

The state of the funding market and the ongoing shadow cast by PACCAR

A key inflection point continues to be the Supreme Court’s decision in PACCAR, which determined that litigation funding agreements in which a funder earns a return calculated as a percentage of any damages award constitute damages-based agreements, and are therefore unenforceable in collective proceedings before the Tribunal. This has prompted a transition in the funding market towards a model where a litigation funder’s return is calculated as a multiple of drawn or committed capital.

In June 2025, the Civil Justice Council (CJC) published its final report on litigation funding, recommending “light-touch” regulation of third-party funding and urging that PACCAR be reversed by legislation, which should be both prospective and retrospective in effect. The extent to which the CJC’s recommendations will be implemented remains to be determined.

A string of recent Court of Appeal decisions has offered funders and class representatives some certainty regarding the enforceability of their agreements and the right to seek payment before distribution of claim proceeds to class members. In July 2025, the Court of Appeal dismissed various appeals, which sought to challenge the enforceability of litigation funding agreements that had been amended post-PACCAR in the manner described above. Further, the Court of Appeal’s decision in Justin Gutmann v Apple Inc and others confirmed that the Tribunal may lawfully order that a funder’s return be paid from the damages award before distribution to class members, subject to the Tribunal’s supervisory jurisdiction. Whilst this clarification is undoubtedly welcome, funders remain cautious about funding opt-out collective actions in the Tribunal.

Beyond the CAT: developments in representative actions under CPR r.19.8

Presently, the opt-out collective proceedings regime, where class representatives can seek an award of aggregate damages without a requirement to prove individual loss, is only available in relation to alleged competition law infringements. For other mass torts, alternative mechanisms must be used. One such mechanism is provided for by CPR r. 19.8, which permits a claim to be brought or defended by one person as a representative of others who share the same interest in proceedings. The representative action mechanism allows for the resolution of common issues, without the need for each claimant to be a party to the action. Any judgment or order binds all represented persons but cannot be enforced by or against anyone other than the representative without the court’s permission. That safeguard protects the interests of members of the represented class, who are not directly party to the litigation.

Same interest test

A core requirement for a representative action is that the representative and the persons represented must have the same interest in the issues to be determined. Whether represented parties share the same interest is tested by asking whether there are one or more common issues, the resolution of which would benefit all the represented parties.

As the High Court clarified in Smyth v British Airways, the rationale for the same interest test is twofold. First, as outlined above, the represented parties are bound by the result of the representative action brought by the claimant. Second, having the same interest serves to ensure that the representative can be relied upon to conduct the litigation in a way that will effectively promote and protect the interests of all members of the represented class. The court will consider at an early stage whether the same interest test is met and whether the representative action procedure is appropriate.

The “same interest” test is regarded by many commentators as a high hurdle. It will not be met where, for example:

• each individual claim requires its own individual evidence and inquiry;
• some members of the represented class are unable to establish the ingredients of a claim; or
• a defendant is anticipated to have different, fact-specific defences to the various claims advanced by represented parties.

The test is particularly challenging when it comes to the quantification of loss. As was established in Lloyd v Google, the representative action procedure cannot be used to award compensatory damages, where the proper quantification of losses suffered by represented parties requires individualised assessment.

The bifurcated procedure postulated in Lloyd v Google

In Lloyd v Google, Lord Leggatt posited the possibility of a two-stage (or “bifurcated”) approach. In the first stage, the representative action procedure under CPR r.19.8 could be used to resolve common issues on liability, through an award of declaratory relief that would bind all represented persons. In the second stage, individual issues of causation and quantum, which were not suitable for resolution via the representative action mechanism, could be pursued individually, or via a Group Litigation Order.

However, in practice claimants have found it difficult to make use of this procedure. A key recent example is the decision of the Court of Appeal in Wirral Council v Indivior and Reckitt.

Wirral Council brought a representative action on behalf of investors in Indivior Plc and Reckitt Plc pursuant to Section 90A FSMA, in respect of alleged fraudulent statements and dishonest omissions in those issuers’ published information. Wirral Council sought to utilise the bifurcated approach endorsed by the Supreme Court, using the representative action mechanism to seek declaratory relief on common issues; for example, issues of whether the defendants’ published information contained untrue or misleading statements, or omitted information that it was required to include. Individual issues such as standing to sue, reliance, causation and quantum did not form part of the representative action and were left to be determined sequentially.

The Court of Appeal upheld the High Court’s decision to strike out the representative proceedings, determining that where another form of procedure was available, in this case multi-party proceedings where each claimant would be a direct party to the litigation, as opposed to members of a represented class, the Court is required to assess the benefits and disadvantages of each procedural route, and there was no error in the judge’s exercise of that discretion. Of particular importance to the judge’s decision was the need for a claimant in a Section 90A FSMA claim to demonstrate that it acquired, continued to hold or disposed of the securities in reasonable reliance on the published information in issue. The judge was sceptical of exercising his discretion to allow the claimants to get the benefit of findings on the common issues through use of the representative action procedure, without being required to plead their case or provide disclosure or other evidence on reliance, notwithstanding that some (or all) of the claims advanced may ultimately fail to satisfy the reliance requirement.

The judgment indicates that whilst it may be appropriate to use the bifurcated representative action procedure in cases where issues of quantum can be deferred to a separate and subsequent stage, it may be difficult to do so where issues pertaining to liability require individualised assessment.

Conclusion

The collective proceedings regime in the UK remains in a state of flux. The outcome of the government’s consultation on the future of the regime remains to be determined, as does the question of which of the CJC’s recommendations on litigation funding reform will ultimately be implemented, and there has been increasing judicial scrutiny as to where the regime is properly serving the interests of class members. However, the judgment in Kent promises to be a seminal moment, which may offer proof of concept of the potential benefits of the regime and reinvigorate the funding market. Meanwhile, the steady stream of decisions from the Tribunal are continually shaping the regime, with the UK now having developed its own collective proceedings framework that diverges in certain important respects from comparable common law regimes.