Judgment of the Tribunal in relation to the possible joint case management of three sets of proceedings concerning alleged abuses of dominance, including in the market of the provision of native application (“app”) distribution services by the Defendants (“Google”), via the Google Play Store. The Coll Proceedings (Case No. 1408/7/7/21) are opt-out collective proceedings which seek damages from Google on behalf of around 19.5m UK domiciled consumer Android device users. The Rodger Proceedings (Case No. 1673/7/7/24) are also opt-out collective proceedings which seek damages from Google, but on behalf of around 2,200 UK domiciled app developers. The Epic Proceedings (Case No. 1378/5/7/20) are brought by the well-known developer of apps and software for game consoles, personal computers and mobile devices, and in particular, the well-known app, “Fortnite”.
All three sets of Proceedings allege, in broad terms, that, by virtue of various exclusionary practices (i.e. technical and contractual restrictions), it is impossible or impracticable for app and in-app purchases to be made other than via the Google Play Store and Google’s own billing system, thereby attracting a 30% commission charge, which is said to be unfair and excessive. The Coll Proceedings seek damages on the basis that the overcharge was ultimately to a significant extent borne by consumers. By contrast, the Rodger Proceedings seek damages on behalf of app developers on the basis that they absorbed a substantial part of the overcharge, rather than passing it on to consumers. The Epic Proceedings seek injunctive relief which, in broad terms, is aimed at restraining Google from pursuing the allegedly exclusionary practices and from charging unfair or excessive commissions.
A trial was listed to commence in October 2025 in the Coll Proceedings which was set to include factual evidence in the Epic Proceedings (the “October 2025 Trial”), pursuant to an order of the Tribunal dated 15 May 2024. The Rodger Proceedings were recently certified with reasons to follow.
The Tribunal concluded that the proceedings should be case managed together and that the October 2025 Trial should be adjourned in favour of a joint trial of all three proceedings to be listed in October 2026 for the following reasons:
- It would avoid the risk of inconsistent outcomes in relation to claims that significantly overlap.
- Although the adjournment of the October 2025 would cause delay, the timetabling leading to a trial in October 2026 should be achievable considering the progress that has been made in the Epic and Coll Proceedings and the benefits this may have, including in relation to disclosure, in the Rodger Proceedings. In addition, Professor Rodger has stated that he will not seek to unnecessarily duplicate either factual or expert evidence that has already been filed in the Epic and Coll Proceedings.
- Whilst there could be prejudice to Ms Coll, principally as a result of the delay in the receipt by a class member of any potential compensation, the amounts at stake are relatively small and can be compensated for by payment of interest.
- The additional costs are addressed to a significant extent by the proposed indemnity offered by Professor Rodger and the Epic Claimants amounting to a total of £3 million in relation to Ms Coll’s increased costs.
- There were clear efficiencies of having a joint trial in all three proceedings in comparison to separate trials.
In the Tribunal’s view, having regard to what is sensible and proportionate and in the interests of justice to all parties, and taking into account the impact on other litigants and the Tribunal, the balance was clearly in favour of an adjournment of the October 2025 Trial, and in favour of the Tribunal hearing the Coll, Epic and Rodger Proceedings together.
