Judgment (CPO Application)

Judgment of the Tribunal on an application by the Proposed Class Representative (“PCR”) for a collective proceedings order (“CPO”), pursuant to section 47B of the Competition Act 1998 (the “Act”). 

The proceedings seek to combine claims on behalf of UK-domiciled Third-Party App Developers, on an opt-out basis, for loss and damage caused by Google’s alleged infringements of Article 102 of the Treaty on the Functioning of the European Union (up to 31 December 2020) and Section 18 of the Act. 

The PCR alleges that Google is dominant on the Android app distribution market and on the licensable smart mobile OS market, and has abused its dominant position by:

1. Engaging in exclusionary conduct which prevents others from competing in the provision of distribution services to Android app developers; and
2. Charging prices, in the form of the commission charged on purchases of apps and of additional content or subscriptions within those apps, that are: (i) excessive and unfair in their own right, with the commission being up to 30%; and (ii) unfair and abusive as a system of pricing.

The Proposed Defendants (“PDs”) did not oppose the PCR’s application for a CPO and were not represented at the CPO application hearing. 

Although not formally opposing the CPO application, the PDs raised the following concerns in relation to the Authorisation Condition:

• Whether the provisions in the Litigation Funding Agreement (“LFA”) unduly favoured the Funder by requiring the PCR to always procure that the Funder is paid first (“the Order of Payment Provisions”).
• The uplift in the level of return the Funder receives at the commencement of the trial of the liability issues in these proceedings gives rise to perverse incentives (“the Uplift Provisions”).
• The termination provisions in the LFA give undue control to the solicitor and/or Funder (“the Termination Provisions”).
• Whether the Funder has the ability to meet adverse costs including (i) the protection provided by the ATE Policy; and (ii) the sufficiency of indemnity (“the Adverse Costs Provisions”).
• The confidentiality provisions in the LFA should be removed and the LFA should be published to enable scrutiny by the public and potential class members (“Confidentiality”).
• The identification of the members of the PCR’s consultative panel is too late (“the Consultative Panel”).

In relation to the Order of Payment Provisions, the Tribunal was satisfied that there was no obligation to pay the Funder first and, in any event, payment to the Funder first is not objectionable having regard to the Court of Appeal’s judgment in Gutmann v Apple [2025] EWCA Civ 459. 

The Tribunal did not consider that the PDs’ concerns in relation to the Uplift Provisions required intervention to ensure that the stepped increase in the return should be more gradual.

In relation to the concerns raised in relation to the Termination Provisions, the PCR agreed to amend the wording of clause 7.5(c) of the LFA (as set out at paragraphs 59 to 61 of the Judgment).

In relation to the Adverse Costs Provisions, the Tribunal was satisfied that the PCR had sufficient ability to pay the PDs recoverable costs and it that it is not necessary to be satisfied that the PCR has the ability to cover all the costs of the proceedings, at the certification stage.

The PCR confirmed that he intended to make a non-confidential version of the LFA and after-the-event insurance policy available for the proposed class. The Tribunal was satisfied that the PCR’s proposed redactions were necessary for the versions to be published and the Confidentiality issues were sufficiently addressed.

In relation to the Consultative Panel, The Tribunal did not accept the contention that it had been appointed too late. In addition, the PCR confirmed that the Consultative Panel would meet at least on a quarterly basis to address the Tribunal’s concerns as to meetings held twice per year. 

The Tribunal raised additional concerns during the CPO application hearing, as set out at paragraph 82 of the Judgment. The Tribunal were satisfied that these concerns were satisfactorily address after the hearing by the PCR.

Finally, the Tribunal was satisfied the claims (i) were brought on behalf of an identifiable class of persons; (ii) raised common issues; (iii) were suitable to be brought in collective proceedings; and (iv) opt-out proceedings were appropriate. Therefore, the Eligibility Criteria had been met.