Ruling of the Tribunal in relation to the Defendants' (Google) application to vary the collective proceedings order (CPO) in the Rodger proceedings, so that the claims of a limited number of large developers would proceed on an opt-in basis while the balance would remain opt-out.
The Tribunal refused the application as Google had not established that it was appropriate to vary the CPO.
In relation to the strength of the claims, there was no reason to view the claims materially differently from the way they were viewed at certification, where the Tribunal concluded the claims were strong and Google did not suggest otherwise. Google's application did not suggest that the assessment of the merits of the claim had changed in light of the progression of the case to trial.
In relation to practicability, Google's proposition that a substantial proportion of the claim value is concentrated in a small number of developers was not a new one: it has always been the case, from the outset of certification of the proceedings. The more recent analysis by Professor Rodger's expert, Professor Fletcher, regarding the differentiation in revenues of members of the class did not rely on new material but was based on Google's own transaction data. In addition, the Tribunal was not persuaded that there was anything specific in the Court of Appeal's judgment in Evans that would have precluded Google from advancing those arguments on practicability of opt-in which it advanced in its application. Nor did the judgment of the Supreme Court in Evans take a different approach to assessment of practicability to the approach adopted by the Tribunal at the time of the original certification decision. The Tribunal concluded that the overall balance of justice continued to favour the existing opt-out structure.
The Tribunal also considered that the stage at which the proceedings had reached was another very important factor that weighed heavily against the granting of the application. The recertification of the proceedings at this late stage would have created serious practical and procedural difficulties, and would have carried a real risk of entirely derailing a trial for which the parties and the Tribunal have already undertaken extensive preparation.
