Judgment of the Tribunal further to Apple's application to strike out part of Which?'s claim. In brief, a majority of the Tribunal (Michael Cutting, Professor Alasdair Smith) concluded that Apple had not made out its case that the contested claim was simply bad in law and should be struck out, and that it was best left to trial given it raised a novel point of law and was best assessed in light of the evidence. Waksman J dissented from the majority and concluded that the contested claim had no basis in English law and should have been struck out.
The contested claim was in respect of so-called "Non-Purchasing Customers" of iCloud. These were customers who did not pay for iCloud within the Claim Period but who may have valued iCloud services at higher than the to-be-determined counterfactual price.
Apple essentially argued that the contested claim amounted to a claim for foregone consumer surplus (FCS) for which there is no basis in law. It argued that because the claim depended on individual Non-Purchasing Customers' willingness to pay, and this was subjective, it could not be considered to amount to either a pecuniary or a non-pecuniary loss in the English law of damages. Moreover, since no claim could be made in this respect by an individual claimant, the claims could not be aggregated under the collective proceedings regime pursuant to the Competition Act 1998.
The majority concluded that the barrier to an individual claim for FCS as a pecuniary loss was that it could not be objectively evidenced and that in collective proceedings these claims could be aggregated by way of the objective evidence established by the demand curve. Alternatively, given the individual claims can be considered to amount to claims for at least more than nominal damages, this would establish the "gist" of the cause of action, establishing a route to aggregation pursuant to the 1998 Act.
In the alternative, the majority concluded that, even if FCS could not be considered to amount to pecuniary loss, there was authority in the case law (Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344) for the recognition of FCS as a head or measure of non-pecuniary loss. Moreover, if the relevant non-pecuniary loss could not be allowed to be measured by way of the subjective valuations of individual consumers, there was authority for some "modest sum" to be awarded, which would indicate that the contested claim was for more than nominal damages and could thereby be aggregated under the collective proceedings regime.
Waksman J dissented, concluding that the contested claim presented no viable claim for FCS either as pecuniary or non-pecuniary loss. He considered it could not ground a claim for pecuniary loss because the subjectivity underlying the claim went to the heart of whether the particular head of loss could be advanced at all, and was not a question of quantification which could be left to trial. In respect of non-pecuniary loss, he considered that because Ruxley did not use the claimant's own subjective measure of the relevant loss as a route to damages, but its own objective calculation of same, it could not support a claim for FCS. He also considered that because no individual claim could be made in law, claims for FCS could not be aggregated under the collective proceedings regime. Moreover, because the success or failure of the contested claim did not depend on the resolution of facts or presentation of evidence which would only be available at trial, he considered that it should be struck out now and not left to trial.
The Tribunal thereby refused Apple's application to strike out the contested claim and it will proceed to trial.
