Why collective actions still matter

The opt-out collective regime in the Competition Appeal Tribunal, introduced under the Consumer Rights Act 2015, allows consumers and SMEs to pursue damages for breaches of competition law on a collective basis. Claims are brought on behalf of the class by a representative and must satisfy rigorous criteria before proceeding - including case analysis, litigation plan and funding and ATE disclosure. Judicial approval is also needed of any proposed settlement.

As with any new regime, the introduction of new rules led to a plethora of interlocutory appeals including key decisions on the certification test by the Supreme Court in Merricks -v- MasterCard, and judgment awaited from the Supreme Court in the appropriate boundary for opt-in -v- opt-out claims in Evans -v- Barclays and others. Following a slow start, we are, however, now seeing early cases reach conclusion with settlements approved by the Tribunal in Merricks, Trains and Ro-Ro – and a first successful Judgment handed down in November in Kent -v- Apple finding that Apple abused its dominance in relation to the AppStore with an award of damages for consumer and business users of the AppStore of £1.5 billion.  

Call for Evidence by the Department of Business and Trade (DBT)

Yet on its 10^th anniversary, just as the regime  starts to come of age, its future now appears to hang in the balance. A call for evidence was announced by DBT in August 2025 to review the operation of the regime with apparent emphasis as to whether it was bad for economic growth. The regime, it appears, is caught between the option of evidence-led reform versus political pressure to placate big business.

A number of respondents have pointed to the relative infancy of the regime and the need to see a sufficient number of cases come to conclusion before it can be effectively reviewed. Yet barely days after the DBT closed its call for evidence in mid-October, HM Treasury published a policy paper on “ensuring regulators and regulation support growth” which states that the DBT review “has already identified the need for reform to ensure that consumers receive genuinely meaningful redress, whilst businesses can innovate with protections from speculative litigation”. 

To restrict the regime at this stage, so early in its development, would be a mistake. The collective actions regime is one of the few mechanisms that makes access to justice a practical reality for consumers and small businesses. It ensures that when powerful companies break competition law, they can be held to account, and the people and businesses harmed by that behaviour can secure compensation. In doing so, it underpins confidence in the market and ensures that fair and responsible businesses are not placed at a disadvantage by those who bend or break the rules.