UK: Launch Of First UK Opt-Out Class Action

October 1, 2015, marked the entry into force of the Consumer Rights Act 2015 ("CRA"), bringing with it an opt-out class action regime for the private enforcement of infringements in competition law. Now, in March 2016, the first UK opt-out class action has been launched; but is this a suitable 'test case'?'

The New Regime

The previous regime allowed collective claims of competition infringement to be brought by The Consumer Association on an opt-in basis. Only one collective proceeding has ever been brought under the old regime, the case of The Consumers' Association v JJB Sports, where only 130 claimants (0.1% of the estimated affected) opted in, each receiving compensation of less than £20, an award which was far outweighed by the legal costs.

In response to the failings identified by The Consumers' Association v JJB Sports, the CRA introduced significant reforms which aimed to change the competition litigation landscape. In particular, the introduction of the new class action regime, which allows an opt-out collective procedure, is expected to boost private enforcement. Collective proceedings can now be brought either on an opt-in or opt-out basis.

Opt-out collective actions introduced by the CRA mean that it is now possible to apply to the Competition Appeal Tribunal ("CAT") to seek collective redress for a competition law infringement on behalf of class members in a defined group, without the need to identify each individual member or their respective losses. In contrast to the previous opt-in only regime, any class member domiciled in the UK affected by an infringement of competition can now be automatically included in the claim unless they specifically opt-out.

Under the new regime, a collective action may be commenced on two potential grounds:

1. a stand-alone case, whereby claimants must prove an infringement of competition law; or

2. a follow-on case, whereby an infringement decision of the Competition and Markets Authority ("CMA"), the CAT, or the European Commission already establishes the defendant's liability.

Although the latter route is significantly more straightforward for claimants, experience suggests some follow-on claims will stray beyond the boundaries of an infringement decision (for example as to length of the infringement or its geographic or product scope). The ability under the new regime, to bring a stand-alone collective action under the forum of the CAT, will permit these hybrid claims without defendants being able to raise an objection on the basis that the claim is not a pure follow-on claim.

The Mechanics

A collective action can be brought by a person proposing to be a representative, regardless of whether they are a class member or not. Where a representative is not a class member, it is at the CAT's discretion to determine whether it is just and reasonable for that person to act as representative.

Collective Proceedings Order

Crucially, for a collective claim to proceed as opt-out it must first pass the certification phase; the representative must make a submission to the CAT for a collective proceedings order, and the CAT must then consider a number of factors in its evaluation.

In particular, the CAT will consider whether claims of individuals raise the same, similar or related issues of fact or law in order to be considered 'collective.' The CAT must also be satisfied the claim is suitable to be brought as either opt-out or opt-in; this can involve a cost-benefit analysis and an examination of the potential class, including a consideration of the CAT's ability to define a class and its members. The CAT will also weigh the practicability of pursuing the collective proceedings as opt-in or opt-out, having regard to all the circumstances, including the estimated amount of damages the individual class members may recover.

Once granted, the collective proceedings order must include:

  • authorisation of the person who brought the proceedings to act as representative;
  • a description of a class of persons whose claims are eligible for inclusion in the proceedings; and
  • specification of the collective proceedings as opt-in or opt-out.


Damages are awarded to the representative (or such other person as the CAT thinks fit), along with directions on how each claim of a class member should be assessed and their respective damages distributed. Unlike in the US, these damages are granted on a compensatory basis; there are no triple damages or any other form of exemplary or punitive damages in antitrust cases.

In opt-out proceedings, any unclaimed damages must be paid to the charity prescribed by order of the Lord Chancellor (presently the Access to Justice Foundation). The CAT may also order that part or all of unclaimed damages are paid towards the representative's costs and expenses in the proceedings.


Again, unlike the US, the regime prohibits the use of damages-based agreements in collective proceedings. Therefore funding for collective proceedings will likely rely on third-party litigation funders and insurance policies.

The First Case Launched in March 2016

The National Pensioners Convention ("NPC") has launched the first collective action since the new regime came into force. The NPC purports to represent class members who claim to have been overcharged for mobility scooters by Pride Mobility Products ("Pride"). In 2014, the (then) Office of Fair Trading ("OFT") found that, between 2010 and 2012, Pride had entered into various anti-competitive arrangements preventing online retailers from displaying advertising prices below Pride's recommended retail price ("RRP"). The OFT had found that these practices limited consumers' ability to compare prices and get value for money.

The NPC estimates a collective claim worth up to £7.7 million, with a class size of around 34,000 claimants— still subject to CAT's discretion as regards class certification and membership.

There is, however, significant doubt whether the CAT will grant a collective proceedings order on an opt-out basis, given that:

  • the infringement was not a horizontal cartel but involved vertical online sales restrictions that fell short of resale price maintenance. Specifically online retailers were restrained from displaying a price below the RRP, but instead they instructed consumers to 'call for the best price.' The retailers could then sell to them below the RRP;
  • the OFT decision did not include any finding that consumers suffered a financial loss; and
  • anti-competitive effects on consumers in vertical agreements—between Pride and its online retailers—are harder to prove. Many of the assumptions used to estimate the amount of overcharge in a traditional horizontal cartel arrangement do not apply.

In addition, even if these challenges can be overcome, funding may be an issue. The CAT, in assessing whether to grant a collective proceedings order in favour of the NPC, will need to consider the likely costs and funding difficulties the NPC will have. The case could easily cost over £1 million to fund, in return for total potential damages, even on the NPC's estimation, of just £7.7 million. Before obtaining class certification, the CAT's rules require that the class representative demonstrate sufficient funding, such that it could meet the defendants' costs were it to lose the case.

This is likely to be a formidable challenge in this case. While this is far from an obvious or easy case with which to kick off the UK's new collective redress regime, its novelty means that it is guaranteed to be watched closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.