Since the introduction of the collective proceedings regime, debate has centred on the framework’s front end: the collective proceedings order (CPO) and the certification threshold. However, as the regime matures and more claims pass the certification hurdle, practitioners and parties, particularly defendants, face another increasingly important question: what happens when a certified claim loses its path to trial?
The Department for Business and Trade’s review of the collective proceedings regime identified a particular concern among business respondents about the lack of effective, clearly structured off-ramps post-certification. While claimant- and consumer-focused respondents naturally held differing views, the underlying issue deserves closer attention: how should the regime respond when a claim deemed suitable for collective determination at certification subsequently ceases to be so? When circumstances shift after certification, the Competition Appeal Tribunal (CAT) and the parties can find themselves on a high-stakes, somewhat rigid track towards trial, with few interim exits.
The Supreme Court’s decision in Merricks v Mastercard confirmed that CPO applications should not involve mini-trials. Certification is necessarily based on a limited evidential record, so economic methodologies or class definitions are framed around theoretical plausibility. Yet, as proceedings progress through evidential phases and to trial, a claim’s commercial and legal reality can diverge from its initial blueprint. This creates a need for effective exit mechanisms later in a collective claim’s lifecycle. This is particularly important for defendants, given the substantial costs, resources and reputational attention collective proceedings attract, even where defendants ultimately succeed at trial.
In standard commercial litigation, a defendant facing a weakened, disproportionate or otherwise changing claim may rely on summary judgment or strike-out applications to bring the matter to an orderly conclusion. However, in collective proceedings, ending a certified claim before trial presents unique challenges. Summary judgment and strike-out applications are available under the CAT Rules, but applying them to vast, multi-layered economic evidence across a class of millions is considerably harder. Similarly, settling opt-out proceedings is more complex than in conventional litigation, as it requires CAT approval, adding complexity and uncertainty.
Nevertheless, the regime’s safeguards may, in principle, be used to adapt or end proceedings. The challenge, however, is that their operation as effective off-ramps remains largely undeveloped.
First, CAT Rule 85 gives the CAT broad powers to vary or revoke a CPO if certification criteria are no longer satisfied. Recent litigation illustrates the availability and limits of this mechanism. In Ennis v Apple, the CAT considered an application to revoke a CPO following the Evans v Barclays Supreme Court judgment. It ultimately declined, concluding that the claims remained reasonably strong and that opt-out proceedings remained justified. Similarly, an application to vary the CPO was rejected in Rodger v Google. The bar for decertification therefore remains high, and Rule 85 has yet to result in wholesale decertification of a collective claim.
Second, Rule 88 provides a more flexible tool that could address changes post-certification. It gives the CAT open case-management powers, including to narrow or restructure proceedings or determine common issues together. That flexibility is important where changed circumstances may not justify ending proceedings, but could justify narrowing their scope or restructuring them. However, there is limited guidance on how far Rule 88 might be used to materially reshape a claim where circumstances change substantially after certification.
The question, therefore, is not whether the CAT needs sweeping new powers. Rather, notwithstanding its existing powers, the framework would benefit from clearer, structured off-ramps, coupled with explicit guidance on when and how those powers should be used, to ensure the regime is robust, proportionate and fair:
- Regular, post-certification review points: Afford the CAT expressly recognised opportunities at defined stages to consider whether any material developments call into question the continuing rationale for collective treatment, for example following disclosure, expert evidence or other significant evidential milestones. Such a review should not replicate certification or require reassessment in every case, but provide opportunities to identify significant changes warranting reconsideration.
- Clarify use of existing powers: Provide guidance on when and how the CAT’s existing powers under rules 85 and 88 should be used in response to material changes after certification, in particular outlining when a claim might be decertified.
- Early determination of core economic issues: Empower the CAT to hold targeted preliminary issues trials on critical methodology or pass-on questions before full disclosure or trial preparations commence.
- Proportionate cost and funding safeguards: Require updated funding disclosure and security for costs assessments where estimated damages drop significantly, aligning funder risk with evolving trial viability.
Importantly, these mechanisms could permit narrowing the class, varying the CPO, altering the opt-in/opt-out structure, staying particular issues or facilitating a structured settlement, thereby providing a spectrum of off-ramps rather than an ‘all or nothing’ choice between carrying on with the claim and decertification.
A mature collective proceedings regime must be a two-way street. A well-designed off-ramp is neither a defendant escape route nor a mechanism to frustrate legitimate collective actions. Protecting consumer rights and access to justice does not require parties to remain locked into inflexible, full-scale trials when a claim’s foundation erodes post-certification. Clearly defined, transparent off-ramps would allow the CAT to manage non-viable or materially changed claims, protect defendants from unjustified exposure, and ensure that legitimate collective claims retain a clear and credible path to resolution.
Susanne Buergi, counsel at Norton Rose Fulbright, is a committee member of the LSLA
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