Judgment (Joint CPO)

This judgment concerns two applications for Collective Proceedings Orders (CPOs) under section 47B of the Competition Act 1998, brought respectively by Professor Stephan and Mr. Hammond. Both applications are directed against the same group of respondent companies within the Amazon group.

Each PCR seeks a CPO on an opt-out basis:

• Mr. Hammond represents a proposed class of consumers.
• Professor Stephan represents a proposed class of retailers.

Both claims allege that Amazon abused a dominant market position in breach of the Chapter II prohibition in section 18 of the Competition Act 1998 and, for conduct prior to 31 December 2020, Article 102 of the Treaty on the Functioning of the European Union (TFEU). While the classes differ, there is overlap in the alleged abuses, with Professor Stephan also alleging additional forms of abuse not raised by Mr. Hammond.

Amazon’s Objections

Amazon opposed the granting of both CPOs on the following grounds:

1. Concerns over the litigation funding arrangements.
2. Challenges to the expert methodologies presented.
3. In Professor Stephan’s case, an alleged conflict of interest within the proposed class.

Tribunal’s Findings

Authorisation Condition

The Tribunal found that both applicants satisfied the Authorisation Condition, based on:

• Prior determinations in the related carriage disputes ([2024] CAT 8 and [2025] CAT 6) confirming their suitability to conduct proceedings.
• Support from experienced advisory committees.
• Absence of personal conflicts of interest.
• Adequate arrangements for adverse costs.
• Representation by experienced legal teams and comprehensive litigation plans.

Funding Arrangements

The Tribunal focused on key aspects of the funding agreements, including settlement provisions, funder termination rights, control of legal costs, and funder remuneration.

• Professor Stephan’s LFA:
  • Termination clauses had already been scrutinised in the Carriage Disputes.
  • Concerns over legal costs were addressed by his agreement to engage specialist costs lawyers.
  • The Tribunal accepted that the evolution of funding terms, including a reduced funder return, was not grounds for objection.
     
• Mr. Hammond’s LFA:
  • Although the funder was not a member of the Association of Litigation Funders, a letter of assurance and lack of challenge to the funder’s financial capacity satisfied the Tribunal.
  • Settlement and termination clauses were deemed adequate.
  • The Tribunal declined to assess the funder’s return at this stage, noting that such scrutiny may follow judgment or settlement. However, it emphasised that PCRs must demonstrate efforts to secure favourable funding terms.

Eligibility Condition

The Tribunal concluded that both applicants met the Eligibility Condition:

• Each proposed class was clearly defined.
• Both claims raised significant common issues.
• Professor Stephan’s expert methodology was found to be sufficiently robust, despite some criticisms.
• Mr. Hammond’s expert methodology was adequate for the exploitative abuse claim, though lacking clarity on the exclusionary abuse. Nonetheless, the Tribunal allowed the claim to proceed, with the exclusionary aspect to be supported by Dr. Houpis’ methodology, either through joint instruction or other agreement.

The Tribunal also determined that it would be inefficient and burdensome to conduct separate trials, given the overlap in issues. Therefore, it was appropriate for both actions to proceed together.

Conflict of Interest 

Finally, the Tribunal rejected Amazon’s objection to Professor Stephan’s application based on an alleged conflict of interest within the class.