CLASS ACTIONS FOR COMPETITION LAW BREACHES IN ENGLAND AND WALES
England and Wales has a specialist collective proceedings regime for competition claims only. The collective proceedings can be brought by class representatives on an opt-in or opt-out basis. An opt-in claim requires claimants to sign up to the claim. An opt-out claim does not require claimants to sign up or even be identified at the outset of the claim. Instead, the claim is brought on behalf of a defined class of claimants who are included in the claim unless they opt out of it. The remainder of this article will focus on opt-out claims, which more closely resemble US-style class actions.
Collective proceedings must be filed in the Competition Appeal Tribunal (CAT), a specialist competition court. They are subject to an initial certification stage during which the CAT will decide whether to make a collective proceedings order that will allow the claim to proceed and if so, on what terms. Opt-out collective proceedings can only be settled following CAT’s approval.
Over the last year or so, a number of important judgments were given on certification, settlement and substantive collective proceedings. More generally, the regime, which was introduced over 10 years ago, is also being reviewed by the UK government.
Certification
To make a collective proceedings order, the CAT must be satisfied that: (i) it is “just and reasonable” to authorise the proposed class representative to act as a representative in the proceedings; and (ii) the claims are eligible for inclusion in collective proceedings (i.e., they are brought on behalf of an identifiable class of persons, raise common issues and are suitable for collective proceedings). Following the Supreme Court’s decision in Merricks in 2020, it was generally considered that the bar to certification of collective claims was low.
Apr-Jun 2026 issue
Slaughter and May