Judgment of the Tribunal refusing the Defendants’ application to decertify the class as a whole and revoke the Collective Proceedings Order dated 29 November 2024 (the CPO).
The Tribunal first addressed the question of whether it should consider exercising its power to revoke the CPO. It concluded that the Supreme Court’s decision in Evans [2025] UKSC 48, which post-dated the Tribunal’s decision on certification in these proceedings, represented a sufficient change in circumstances to justify the Tribunal considering whether it should exercise this power.
The Tribunal had particular regard to (i) the strength of the claims, and (ii) the practicability of opt-in proceedings, when considering whether the continuation of these proceedings on an opt-out basis was justified.
As to the strength of the claims, the Tribunal held that these are claims which have reasonable prospects, and in the context of certification, may be regarded as relatively strong. The Tribunal concluded that it was entitled to take from the judgment in Kent [2025] CAT 67 that there is evidence which can be put before the Tribunal in support of each step in Dr Ennis’ case, and that this evidence has sufficient cogency and weight to constitute at least a serious case to answer. Even if it were to have no regard to the judgment in Kent, the Tribunal found that, in as far as the claims concern sales through the UK/EU storefronts, they are still relatively strong in the context of certification. The Tribunal drew a distinction between these proceedings and those in Evans in this respect, where the weakness of the claims was considered to be a reason against certifying on an opt-out basis.
As to the practicability of opt-in proceedings, the Tribunal concluded that, tested against the analysis in Evans, these proceedings continue to satisfy the criteria for certification on an opt-out basis. Having regard to economic considerations, the Tribunal held that there are a significant number of developers who have claims which are collectively worth pursuing, which it is unlikely could be reasonably pursued other than collectively and on an opt-out basis. The Tribunal also had regard to non-economic considerations, such as public expressions of concern about retaliation, or the risk of retaliation, by the Defendants against developers who challenge them. The Tribunal concluded that these features of the case, amongst others, mean that the overall balance of justice continues to favour certification of the entire class.
