Ten years of the CAT: What comes next for collective actions in the UK

This article draws out the key takeaways from a recent webcast, The CAT at ten: Collective actions and the future of competition litigation in the UK, in which Burford’s Charlie Rooke joined Belinda Hollway of Hausfeld, Patrick Teague of Geradin Partners and Craig Arnott, who was Burford’s Chief Investment Officer – International at the time, to discuss how the regime has developed and what may come next.

Watch the webcast on demand here.

The challenge is no longer enabling access, but delivering redress

Much of the opt-out regime’s first decade has been concerned with access: Whether collective proceedings could provide a workable route for claims that would otherwise be difficult or uneconomic to pursue individually. As the regime matures, the focus now is on what happens after that access is established. The central questions are whether viable claims can be pursued proportionately and whether and how cases can result in meaningful redress making its way into the pockets of class members.

Kent v Apple represents the largest judgment to date, creating a damages pool of £1.5 billion for UK consumers (if it survives appeal) and demonstrating the CAT’s willingness to make very sizeable damages awards. The McLaren RoRo proceedings produced settlements totaling approximately £93 million, while Merricks resulted in a £200 million settlement. Other claims have failed at trial or certification.

For Belinda Hollway, that mixed record is itself evidence of a functioning regime:

“Some cases win, some lose, some settle, and that is actually the way you would expect things to happen in any well-run field of litigation.”

An important measure of the regime’s next phase will therefore be not simply whether viable claims are able to proceed through certification, but whether the economics of pursuing those claims enable successful outcomes to deliver meaningful redress to class members.

Certification is becoming a test of whether claims can deliver meaningful outcomes

Certification now requires more than an arguable claim. The CAT is examining whether there is a credible “blueprint to trial”, the legal and economic analysis is coherent, the proposed class representative can act for the class and whether the claim is adequately funded and insured. Distribution is also being considered earlier.  

Recent decisions have put greater weight on these practical questions. Evans made clear that opt-out treatment cannot be assumed where opt-in is practicable, and Waterside focused on whether the likely recovery, costs and prospects for distribution mean the proceedings can deliver a meaningful outcome for the class.

Patrick Teague highlighted the underlying question:

“Even if the claim’s good, and even if opt-out is the right mechanism for it, will this actually deliver anything meaningful to the class once all the costs are accounted for?”

The result is a more demanding certification exercise, requiring enough evidence to show that collective proceedings are a reasonable and proportionate way to pursue the claim.

Front-loading creates tension between scrutiny and cost control

A more intensive certification process has an unavoidable effect on budgets. If distribution, economic methodology and other threshold issues must be developed earlier, a greater share of the case cost is incurred (and at risk) before certification.

Earlier work can provide useful clarity on risk, cost and whether the case can in fact be delivered. The difficulty arises if certification becomes so extensive that it starts to resemble a mini-trial, particularly where evidence of the alleged misconduct may only become available through disclosure. The appropriate balance is to establish that a claim is viable, funded and capable of producing a practical result without litigating the merits.

Opt-in and opt-out treatment will depend on the characteristics of the class

High-volume consumer claims involving relatively small individual losses are likely to remain stronger candidates for opt-out treatment, because opt-in may be impracticable where individual stakes are modest. But only where the claim can show the consumers will come forward to claim, or there is a creative mechanism to provide direct redress.

Claims involving smaller groups of identifiable commercial parties raise questions about whether opt-in proceedings are practicable or preferable.

Patrick Teague reflected on how the regime could be developing:

“A split between a kind of consumer track that’s always opt-out, but very heavily scrutinized on things like distribution and take-up, and… a commercial track where the battle is really about whether a class should have to be certified on an opt-in basis as opposed to opt-out, but that is scrutinized more on merits and proportionality.”

The case law is still developing, but class size, the value of individual losses and how readily class members can be identified all inform whether opt-in is practicable and, if not, whether opt-out treatment is therefore justified. Post-Evans decisions also suggest that opt-out proceedings may remain appropriate for business classes, even where some members have suffered losses many times greater than others, because opt-in participation may nevertheless not be realistically viable.

Legal finance remains available, but the bar is high

As the CAT continues to acknowledge, legal finance plays a critical role in collective proceedings, where complex litigation requires substantial capital. Funders undertake rigorous diligence before committing capital.

Strong cases combine significant and defensible aggregate damages with a coherent theory of harm, robust legal and economic evidence, an experienced legal and expert team, a credible route through certification, realistic prospects of recovery and a workable distribution model. Good cases are still being brought, but the bar is high.   

Proposed class representatives therefore need to be able to demonstrate how substantial litigation budgets will be controlled, as well as why the costs are justified by the needs of the case.

Craig Arnott argued that budgets need to be actively tested:

“Ground this in reality. Show why it’s necessary. Show if it is necessary, and let’s all try to get control of the costs to the extent we can.”

Distribution is now part of the economics of the case

The Gutmann trains settlement illustrates the challenges with distribution. In May 2024, the parties agreed a settlement of up to £25 million, but only 7,290 class members came forward, resulting in less than 1% reaching the class. A judgment or settlement alone does not establish that a collective action has worked; there must also be a realistic mechanism for distribution.

Belinda Hollway explained that established methods such as generic advertising are not enough. Distribution needs to be designed around the particular product, market, class and depends on the specific facts of the case:

“What we really need to do is think about what is the product that has caused the loss and how do I get to those people? How do I do it creatively and interestingly?”

That does not mean a distribution plan should be finalized at certification, for it may add additional costs without producing reliable answers. The primary question is whether the CAT is comfortable that distribution is realistic, and that the costs of the proceedings will not defeat their purpose.

Belinda Hollway also stressed that direct payments are not the regime’s only objective. Deterrence and disgorgement remain relevant, and cy-près mechanisms may merit greater consideration where direct distribution is difficult.

Reform could tighten scrutiny but make financing easier

In July 2026, the Department of Business and Trade (DBT) published the outcome of its call for evidence in relation to its review of the collective actions regime. Its recommendations include significant reforms which could reshape both certification and the financing of collective claims.

One proposal would introduce an “absolute suitability” test to certification, giving greater statutory weight to merits, proportionality and cost-benefit considerations. Patrick Teague noted that translating that test into statute without recreating a mini-trial could be difficult, and that the change could make certification more resource-intensive and expensive.

Craig Arnott also encouraged greater flexibility around funding:

“The more you can do to insert creativity in financing options, the better off everyone is going to be.”

For example, proposals to allow damages-based agreements for opt-out collective actions could broaden financing options and make smaller claims viable across portfolios of claims.

The reforms could therefore pull in two directions: Raising the bar for certification while giving viable claims more options for securing funding. The consultation on these proposals closes in September 2026.

After a decade, the UK’s collective actions regime is entering a critical phase. The focus is now on identifying suitable claims, keeping costs proportionate and ensuring judgments and settlements deliver meaningful redress.

Several important cases are approaching trial, and significant awards that ultimately reach affected class members would provide further evidence that the regime can deliver meaningful redress. Greater clarity for class representatives, lawyers and funders will be beneficial, and it is hoped that the DBT’s recommendations are carefully considered.

If the regime can consistently deliver both viable claims and meaningful redress, the opt-out competition regime could provide a blueprint for collective redress more broadly, extending access to justice across a wider range of claims.