We are all familiar with American legal thrillers in which an unlikely team of plaintiff lawyers takes on the might of a corporate giant in a ‘David versus Goliath’ class action. Change the jurisdiction to England and the venue to the Competition Appeal Tribunal (CAT), take away the jury and contingency fee agreements for the claimants’ lawyers, change some of the terminology and frame the claim as an infringement of competition law. Now you have a UK class action. It may bear many superficial resemblances to its US progenitor, but it is hard to make it sound exciting.

With effect from 1 October 2015 the Competition Act 1998 was amended, ostensibly to improve claimants’ ability to bring private actions in competition law. Specifically, claimants are able to bring ‘collective proceedings’ through a named representative and, if the CAT agrees that the claims are suitable for collective proceedings, it will make a collective proceedings order (CPO) so that the same, similar or related issues of fact or law can efficiently be determined together. The desirability of having common issues determined once, in a single hearing rather than in a thousand and one mini-hearings, is clear and this is the key justification for class litigation.

It is not always necessary to name all the members of the class. In a suitable case, and one which only involves UK resident class members, an opt-out process, rather than an opt-in process, may be used in which all members of the class are deemed to be claimants, unless they expressly choose not to be. The need for the opt-out procedure was conclusively demonstrated by the fact that, in the only opt-in collective action brought before the opt-in procedure was introduced, only 130 claimants opted into a class that had been estimated to comprise 130,000 – nowhere near enough to justify continuing the proceedings. The result was an embarrassing and presumably expensive climb-down.

Jan-Mar 2019 issue

Humphries Kerstetter LLP