Judgment of the Tribunal further to the PCR's application for a collective proceedings order, seeking certification of her claim on an opt-out basis, which was opposed by the Proposed Defendants, Microsoft. The claim relates to certain of Microsoft's licensing practices in respect of its Windows Server operating system and its cloud computing platform Azure. The claim is brought on behalf of PCMs which obtained licences to use Windows Server.
Microsoft's primary position in respect of the application was that it should be refused entirely. The specific issues in dispute aside from that were: (1) whether the PCR provided an adequate blueprint to trial said to pass the Pro-Sys Test; (2) whether the claim should proceed on an opt-out basis or whether there should be separate opt-in and opt-out classes; (3) whether the PCR's funding arrangements were sufficiently adequate so as to justify certifying the PCR as class representative.
In respect of (1), the Tribunal concluded that, however novel the PCR's theory of harm underlying her claim may be, it posited losses on a class-wide basis which arose straightforwardly from the PCMs having faced an overcharge as a result of Microsoft's licensing practices, thereby meeting the nub of the inquiry under the Pro-Sys Test.
In respect of (2), the Tribunal concluded, first in respect of the merits of the claim, that it is an apparently viable one with a good prospect of success. In respect of the practicability of bringing the claim on an opt-in basis, the Tribunal considered the distinct groups making up the PCMs which stand in a different position as regards the possibility of opting in to the proceedings. On the latter point, the Tribunal concluded that there was not any clear parallel between the outcome of the practicability assessment set out in the Supreme Court's judgment in Evans v Barclays Bank Plc and Others [2025] UKSC 48 and the one in respect of the PCMs in this claim. Overall, the Tribunal rejected Microsoft's arguments and concluded that the claim should be certified on an opt-out basis.
In respect of (3), the Tribunal concluded, although there is a level of uncertainty surrounding the PCR's funder, LCM, the concern it had around this was not such as to persuade it that it would not be just and reasonable to certify the PCR as class representative. Other concerns around funding were addressed by correspondence from the PCR's solicitors relating to amendments to the PCR's LFA.
The Tribunal thereby certified the claim on the terms sought by the PCR.
