UK Competition Litigation Quarterly Update: Q4 2025

On 18 December 2025, the Supreme Court handed down its landmark judgment in Evans v Barclays Bank and Others [2025] UKSC 48. The Supreme Court reversed the Court of Appeal's decision and reinstated the Competition Appeal Tribunal's refusal to certify the collective proceedings on an opt-out basis. The judgment will have a significant impact on the collective proceedings regime, particularly in relation to certification of future claims.

Strength is a relevant factor

Contrary to the Court of Appeal's approach of treating the strength of a claim as a neutral factor in determining whether to certify on an opt-in or opt-out basis, the Supreme Court held that the strength of a proposed claim is a relevant factor (indeed, it is expressly stipulated to be a relevant factor in Rule 79(3)(b) of the CAT Rules). The Supreme Court noted that the legislation would not have singled out this factor from the range of factors potentially relevant to the choice between the opt-in and opt-out procedures if it was intended that it should generally be regarded as a neutral consideration.

The Supreme Court stated that there was “no mystery about the significance of this factor”, noting that opt-out proceedings provide significant “leveraging” advantage to claimants. If a claim is weak, certifying it on an opt-out basis unfairly pressures defendants to settle a claim for more than merely “nuisance value”, even though it would be likely to fail at trial.

The Supreme Court held that strength in fact operates on a ‘sliding scale'. While a claim does not therefore need to be bulletproof to be certified as opt-out, the less confidence the CAT has about the merits of a claim, the harder it should be to conclude that imposing the additional detriments of an opt-out claim on a defendant is fair and a price worth paying in the overall interests of justice. In the case at hand, the CAT considered there to be challenges with proving causation and there was not a ‘plausible theory of harm'.

Practicability of opt-in

CAT Rule 79(3)(b) provides that when determining whether collective proceedings should be certified as opt-in or opt-out, the CAT may take into account whether it is practicable for the proceedings to be brought as opt-in collective proceedings. The Supreme Court held that the implication of Rule 79(3)(b) is that, if it is practicable for proceedings to be brought on an opt-in basis, then generally speaking they should be.

The Supreme Court recognised that the regime is designed to accommodate a wide spectrum of cases: at one end of the spectrum, there may be a large class of ordinary consumers seeking small sums for each individual, which would make each individual case economically unviable given the costs involved (for example, the Merricks proceedings). At the other end of the spectrum, the claimants who allegedly suffered losses may be large commercial organisations, well capable of looking after their own interests.

In the case at hand, the CAT identified distinct groups within the class. In particular, the CAT identified a group of financial institutions and large commercial entities, which have allegedly suffered significant losses, and also a very large number of individuals and smaller entities who have allegedly suffered losses but only in very small amounts. In respect of the former, the CAT had recognised that given their sophistication and the potential size of their claims, those companies would be in a position to bring claims on an opt-in basis, if they chose to. However, the CAT inferred from their unenthusiastic reaction to efforts by the class representative, Mr Evans, to interest them in bringing proceedings, that they did not wish to participate in such an action. In respect of the latter, the CAT accepted that it would not be practicable for them to pursue opt-in proceedings.

The CAT opted to make an overall assessment, in light of the composition of the class, and concluded that it should not allow a sub-class of persons whose claims were by value a tiny fraction of the aggregate claim to alter their conclusion on practicability. To do so, the CAT held, would be “to allow the tail to wag the dog”.

In evaluating the CAT's assessment, the Supreme Court held that it is difficult to see why the financial institutions and large entities with substantial claims should be allowed to proceed by way of opt-out collective proceedings and that the CAT was entitled to conclude that they should not be permitted to bolster their position by ‘bundling' themselves together with another group of potential claimants.

Admissibility of evidence

The class representative sought to rely on factual findings from certain European Commission infringement decisions as evidence of wrongdoing by the defendants. In particular, the class representative sought to rely on findings from the Sterling Lads decision, which was addressed only to Credit Suisse, as probative material against other banks who were not addressees of that decision and this was permitted by the Court of Appeal. 

The Supreme Court held that it was a mistake for the Court of Appeal to declare the decision admissible as against defendants who were not addressees of that decision and confirmed that the common law rule from Hollington v Hewthorn applies to the Competition Appeal Tribunal, even though the CAT operates under its own evidential rules. The Supreme Court upheld the strict application of the Hollington rule, meaning that findings of fact made by other courts or regulators are generally inadmissible as evidence of those facts in claims before the CAT, particularly where the findings concern different parties to those involved in the litigation. This approach ensures that each case is determined on its own evidence, rather than relying on conclusions reached in separate proceedings involving different parties.

Going forward, claimants will face greater challenges if they seek to rely on prior regulatory or judicial findings, particularly where those findings do not directly concern the defendants in their case.

Conclusion

The Supreme Court's decision marks a pivotal moment for the UK's collective proceedings regime, recalibrating the balance between access to justice and the protection of defendants from unmeritorious opt-out claims. By holding that the strength of claims and the practicability of claims being brought on an opt-in basis are relevant to certification of claims on an opt-out basis, the Supreme Court has set a higher bar for opt-out collective actions, particularly those involving large, sophisticated claimants. We can expect to see more rigorous scrutiny by the CAT of the merits of proposed collective actions at certification stage, with no presumption in favour of opt-out proceedings, particularly for proceedings which are not predominantly brought on behalf of consumers.

A full copy of the Supreme Court's judgment can be found here.

(Evans v Barclays Bank and Others [2025] UKSC 48)

On 17 October 2025, the CAT handed down its judgment, dismissing the multi-million pound claim, ruling that the defendants' conduct did not constitute an abuse of dominance. The judgment provides important guidance on the scope of abuse of dominance under UK competition law.

In our Q3 Competition Litigation Update, we reported that the CAT had approved a settlement in the Boundary Fares litigation. That settlement was reached with Stagecoach South Western Trains and the case against the other defendants – First MTR, London & South Eastern Railway and Govia Thameslink Railway proceeded to a first trial on the issue of abuse, with dominance assumed. 

On 17 October 2025, the CAT handed down its judgment. In a landmark defeat for the class representative, Justin Gutmann, the CAT dismissed the multi-million pound claims, ruling that the defendants' conduct did not constitute an abuse of dominance. The CR has confirmed that he will not appeal the ruling on abuse and the judgment therefore marks the end of the litigation.

The core allegation in all three of the parallel collective actions was that the defendants had abused their dominant market positions by failing to make ‘Boundary Fares' (extension tickets for TfL Travelcard holders) sufficiently available or visible, leading to passengers ‘paying twice' for the London portion of their journeys. 

The claims were brought on a standalone basis, alleging that the train operators had abused their dominant market positions by failing to:

1. take reasonable steps to make customers purchasing tickets aware of Boundary Fares; and/or
2. make Boundary Fares sufficiently available to customers.

No lack of awareness

As to whether there was insufficient awareness among customers of Boundary Fares, the CAT regarded the CR's evidence to be “wholly unsatisfactory” and concluded that the CR had not successfully shown there to be a lack of awareness of Boundary Fares which constituted an abuse. The CAT found it particularly significant that the CR had not advanced any consumer survey evidence indicating a lack of awareness, despite having the resources to do so. 

Although the CAT accepted that the defendants could have done more to market Boundary Fares, it held that it had to be seen in the “wider context”, including the fact that Boundary Fares constitute just one type of fare among many and the defendants have a multitude of obligations in running their services.

Importantly, the CAT clarified that  “a dominant company has no duty under competition law to assist all its customers to pay the lowest price or to buy the optimal product for their needs” and “if a dominant firm makes a product sufficiently available to customers…and does not conceal its existence, we cannot accept that the “special responsibility” of the dominant firm requires it to promote or advertise a product  that will benefit some of its customers”.

No lack of availability

As to whether Boundary Fares were made sufficiently available to the defendants' customers, the CAT fully accepted that each of the defendants' selling systems could have been improved. However, based on the evidence presented, the CAT held that it was clear that none of the defendants' selling systems constituted or gave rise to an abuse.  

The CAT noted that Boundary Fares were generally available over the period through at least some channels (for example, ticket offices), and where they weren't accessible (for example, through vending machines or third-party retailers) the CAT accepted that this was reasonable in the circumstances, having regard to the operational realities faced by the operators.

No profit made by the operating companies

The CAT acknowledged and accepted the CR's proposition that it is not necessary for a dominant company to derive a commercial benefit from its conduct in order for that conduct to be condemned as abusive. However, the CAT considered the fact that the defendants were not profiting as a result of the alleged abuse to be relevant to its assessment of abuse. In the case at hand, the defendants were not, in fact, being ‘paid twice', because of the way that Travelcard revenue is distributed between train operators. 

Key takeaways

The judgment provides important guidance on the scope of abuse of dominance under UK competition law. The CAT clarified that “competition law is not a general law of consumer protection”, providing a clear signal that the collective proceedings regime, and competition law more generally, is not a ‘catch all' for general consumer protection disputes.

The CAT confirmed that the concept of abuse is “broad”, but is “not unlimited” and although dominant companies have a “special responsibility” not to impair competition, competition law “does not create an obligation on the dominant company to organise or conduct its business so as to achieve the best outcome for its customers”.

In order to constitute an abuse, conduct must be unfair and must depart from normal competition on the merits. 

The CAT's full judgment can be found here.

(Justin Gutmann v First MTR South Western Trains Limited and Others [2025] CAT 64)

On 7 October 2025, the CAT published its Stakeholder Entitlement Judgment in the Boundary Fares litigation, providing its reasoning for how unclaimed damages are to be distributed amongst the stakeholders.

In our Q3 Competition Litigation Update, we reported that the CAT had approved the settlement in Boundary Fares, marking a significant milestone where for the first time, class members were to receive compensation under the collective actions regime.

With less than 1% of stakeholders making a claim for distribution, the CAT had ruled on how the remaining pot should be distributed. We reported that, whilst we awaited the CAT’s reasoned ruling from the Stakeholder Entitlement Hearing, it was clear the CAT was sending a strong message that it would not shy away from exercising its supervisory discretion to ensure a significant proportion of the settlement sum goes to charity, even if this means the stakeholders’ contractual entitlements are not met. On 7 October 2025, the CAT published its Stakeholder Entitlement Judgment.

Disappointment in uptake by the class

The CAT expressed that the level of uptake by the class of the settlement has been “extremely disappointing”. The CR has incurred costs of over £18 million, but only 7,290 valid claims were made by class members, amounting to £216,485. This level of uptake fell significantly short of the level predicted by the CR (10% to 20% of class members).

Payment to charity

Whilst the Settlement Agreement did not provide for a payment to charity, it was agreed between the CR, the funder and insurer ahead of the hearing that the Access to Justice Foundation should receive a payment of £4 million, less the amount of distribution to class members (£216,725).

The CAT was of the clear view that this is “sensible and just”, stating that the payment to charity “will go some way towards mitigating the extremely disappointing distribution rates achieved in this case”.

In our previous update, we noted that although agreement had been reached between the parties in relation to the payment to charity (following an indication from the CAT that it would consider a substantial payment to charity), the case nevertheless raised interesting questions about the CAT’s jurisdiction to retrospectively unwind an approved settlement agreement and require a defendant to make an additional payment on top of the agreed settlement amount.

Perhaps unsurprisingly, given the agreement reached between the parties, this is not addressed in the judgment and remains an issue that may rear its head again in litigation before the CAT.

In relation to funding agreements and the CAT’s willingness to depart from the terms of a funding agreement, the CAT held that “funding agreements set parameters, not outcomes” and it is for the CAT, at the end of proceedings, to determine costs, fees and disbursements. The CAT provided general guidance that the CAT will, in all collective proceedings, want to look at the position of each Stakeholder, to determine what sum it would be fair, reasonable and proportionate to receive. The CAT did indicate however that it is “not seeking to rewrite the contracts agreed by the parties” and it will naturally attach substantial weight to any prior agreement reached by sophisticated parties.

Remainder of non-ringfenced costs

The sum remaining for distribution amongst the stakeholders was £6.2 million. In the circumstances, the CAT determined the following distribution to be reasonable and proportionate:

• £1.29 million to be paid to CR’s funder, Woodsford (significantly less than c.£7 million Woodsford was contractually entitled to, given the very poor take-up by class members);
• £0.43 million to be paid to the ATE Insurers (significantly less than the £1.26 million contingent premia payable on a successful outcome and set at a level which provided the ATE Insurers with “an overall level of return comparable to the Funder”); and
• £4.48 million to be paid to solicitors and counsel (significantly less than the deferred fees and success fees the solicitors and barristers were contractually entitled to).

It is notable that the CAT regarded the ATE Insurers as stakeholders in the circumstances of this case which “played a key role in enabling the proceedings to be pursued”, and that the CAT awarded the ATE Insurers a proportion of the unclaimed damages set at a level which provided “an overall level of return comparable to the Funder”.

Key takeaways

The CAT’s disappointment with the level of uptake achieved in this case is up in lights in the judgment and it is clear that the CAT is adamant that lessons must be learned going forward.

In particular, the CAT is eager to ensure that more work is carried out at certification stage, to avoid settlements disproportionately benefiting stakeholders other than class members and the CAT has signalled that litigation funding agreements should specify how unclaimed damages might be allocated to charity or cy-près destinations to achieve an appropriate balance.

It is clear from the judgment that the CAT is prepared to override the terms of litigation funding agreements to reach an outcome that it considers to be fair and proportionate. Stakeholders in prospective collective proceedings going forward will want to look closely at distribution prospects prior to the certification stage, to ensure that this risk is properly assessed.

The CAT’s full stakeholder entitlement judgment can be found here.

(Justin Gutmann v First MTR South Western Trains Limited and Another [2025] CAT 72)

On 14 November 2025, the CAT issued its judgment on collective proceedings applications brought by consumer rights advocate Justin Gutmann against the UK’s mobile phone network operators. The judgment provides important clarification of the operation of limitation periods in opt-out collective proceedings.

The Proposed Class Representative brought four applications for collective proceedings orders on behalf of millions of consumers, alleging abuse of dominance in the UK mobile market. The claims concern so-called “loyalty penalties” where customers who purchased a joint contract to cover both the price of a handset and airtime allegedly continued to pay a higher monthly charge after the minimum term expired than customers on SIM only contracts, despite having allegedly “paid off” the cost of the handset.

Proposed defendants’ applications for strike out / summary judgment

Alongside the PCR’s CPO applications (which it granted), the CAT considered two applications by the proposed defendants:

1. First Period Application – for strike out or reverse summary judgment for claims for losses arising before 1 October 2015; and
2. Second Period Application – for strike out or reverse summary judgment for all claims for losses between 1 October 2015 and 8 March 2017.

1. First Period Application (pre 1 October 2015 alleged losses)

The proposed defendants argued that Rule 119(2)-(4) of the Competition Appeal Tribunal Rules 2015 upon which the claim is founded did not come into force until 1 October 2015.

They asserted that instead the 2003 Tribunal Rules (Rule 31 (1) – (3)) should apply, which prescribe a two-year limitation period for claims, which would render any claims for losses suffered pre-1 October 2015 to be time-barred.

The PCR objected to this, contending that Rule 31 of the 2003 Rules should apply only to follow-on claims, and not standalone claims such as the case at hand.

The CAT held that, under transitional provisions, a strict two-year limitation period applied to standalone claims for loses pre-dating 1 October 2015 and struck out the claims arising before 1 October 2015 on the basis that they were time-barred.

This is the first authoritative ruling on limitation periods for standalone collective actions in the CAT which cover the period prior to the coming into force of the current CAT Rules on 1 October 2015. The ruling significantly reduced the potential claim value in this case, encompassing all losses claimed for the period from at least 2007 until 1 October 2015.

2. Second Period Application (losses allegedly incurred between 1 October 2015 and 8 March 2017)

The second limitation strike-out application was brought by certain of the defendants in respect of all claims for damages arising between the period of 1 October 2015 to 8 March 2017, under the provisions of the Limitation Act 1980.

Those defendants contended that the usual 6 year limitation period applied as the alleged conduct had not been concealed by the defendants. Therefore, customers either knew, or could reasonably have discovered, key facts necessary to establish a claim such that the normal 6 year limitation period should not be extended. In particular, those defendants contended that the alleged conduct arose from core commercial terms of the contract the customers had entered into (and that those customers were provided with that information when entering into the contract), and/or because of publicity and mainstream media articles that discussed the issue of so-called “loyalty penalties” in the mobile sector.

The CAT refused the Second Period Application, noting that without pleadings, disclosure or witness evidence, the CAT could not dispose of this issue as a strike out or summary judgment at this time without the issue going to trial. However, the CAT emphasised that it had reached no conclusion on what the ultimate merits of the defence might be once it is “fully traversed” at trial.

Key takeaways

The judgment provides important clarification of the operation of limitation periods in opt-out collective proceedings. The judgment underscores the importance of carefully assessing limitation issues at the outset of proceedings and confirms that damages pertaining to the period prior to 1 October 2015 cannot be recovered in standalone opt-out collective actions. The judgment also highlights the challenges of striking out cases on limitation grounds on the basis of the ordinary 6 year limitation rule, as the Tribunal does not have evidence before it as to the actual or purported knowledge of the claimants.

The CAT’s judgment can be found here.

(Justin Gutmann v Vodafone Limited and Vodafone Group PLC [2025] CAT 77)