Open call for evidence

Opt-out collective actions regime review: call for evidence

Published 6 August 2025

Executive summary

A decade on from the introduction of the opt-out collective actions regime in competition law, we think it is the right time to review its operation and impact. The regime has developed and expanded significantly since its commencement, providing an important avenue for consumers to seek redress through which claimants have sought damages in the tens of billions of pounds^{[footnote 1]}.

The original objectives for the opt-out collective actions regime were to:

• provide improved redress mechanisms for parties harmed through anti-competitive behaviour, both through follow-on as well as standalone actions
• provide a significant deterrent effect to future anti-competitive behaviour through an effective system for collective actions
• strike the right balance between the need for an effective system for collective action claims and protecting of defendants from having to settle unmeritorious claims

We are committed to consumer protection and want to ensure that the regime has achieved, and continues to achieve, these objectives. This government is focused on economic growth, and a regime that is proportionate and focused on returns to consumers where they are due is good for growth and investment.

However, we are aware of the potential burden on business that increased exposure to litigation can present. Finding the right balance between achieving redress for consumers and limiting the burden on business is essential to ensure that businesses can operate with certainty, whilst providing a clear, cost-effective, route for consumers.

As part of our review, we will take into account existing work relevant to the regime, such as the Civil Justice Council (CJC)’s recent report on litigation funding^{[footnote 2]}, while also welcoming views and feedback that more specifically applies to the opt-out collective actions regime.

This government is clear that consumers should have a right to redress, and is committed to reforming the consumer enforcement landscape in a way which delivers justice for consumers without incentivising speculative competition claims. Consequently, this call for evidence asks for views on key aspects of the opt-out regime – and views on how best to strike this balance.

Background – opt-out collective action in competition cases

The opt-out collective actions regime for competition law cases was introduced via the Consumer Rights Act 2015 (‘CRA 2015’). The intention of the regime was to make it easier for consumers (including businesses) to seek redress where they have suffered loss as a result of a breach of competition law.

Collective actions typically make justice more accessible for consumers. Breaches of competition law often result in large numbers of people losing a small amount of money, meaning it is not cost-effective for individual actions to be brought. Collective actions allow all victims of a breach to obtain redress through a single claim.

Opt-in claims are available in a range of case types and jurisdictions; however, opt-out claims – as introduced in the CRA 2015 – are currently only available in respect of loss suffered as a result of competition law breaches. Opt-out cases further improve ease of access to redress, by making members of a class automatically eligible for redress without requiring them to take any proactive steps. Given their size and scale, opt-out collective actions are the focus of our review.

There are 2 kinds of collective action case available before the Competition and Appeals Tribunal (CAT): follow-on and standalone. Follow-on cases are brought where the Competition and Markets Authority (CMA) or European Commission (EC) have already investigated anti-competitive behaviour and made an adverse finding. Standalone cases are brought where no regulatory investigation has yet been undertaken or concluded.

In collective actions, class members are represented by a class representative authorised to act in that capacity by the CAT. The CAT also certifies claims as eligible for inclusion in collective proceedings, which is a requirement designed to prevent inappropriate claims from progressing in that form.

Once commenced, cases are often lengthy and costly due to their complexity and requirement for specialist legal, economics and other advisors and experts. If parties reach a proposed settlement prior to the conclusion of court proceedings, the collective action settlement regime applies, under which the parties approach the CAT to seek its approval of the proposal. Any approved settlement is then binding on class members unless they opt out. Funds are then distributed to eligible members of the class who come forward after they are notified of the settlement.

Why we are reviewing

The opt-out collective actions regime has now been in operation for approximately 10 years, and has developed significantly in this time. This, combined with it being the first regime of its kind in the UK, makes it an opportune time to review the efficacy of the regime – primarily, whether it is delivering access to justice for consumers in a way that brings value without being disproportionately burdensome on business. 

Since 2015, the opt-out caseload has grown significantly, with tens of billions of pounds in damages claimed^{[footnote 3]} and hundreds of millions of pounds spent on legal fees. This is far higher than estimated in the original impact assessment, which estimated the total cost to business to be £30.8 million per annum (taking into account legal and associated costs, and the paying out of redress)^{[footnote 4]}.

The type of case being brought before the CAT has also developed in unexpected ways; when the regime was introduced, it was expected that majority of cases would be follow-on. However, approximately 90 per cent of the current caseload is now made up of standalone cases.

While the caseload has grown, only one case (Justin Le Patourel v BT Group Plc [2024] CAT 76) has reached judgment in the CAT, with other certified cases generally concluding in settlement outside of court. This means that there has been limited precedent set on key issues such as damages and distribution.

The increased case flow has also highlighted the need to consider carefully whether the way the regime is operated could be improved, and whether consumers are truly able to hold defendants to account in a way that is accessible, efficient, and proportionate.

In addition to examining potential improvements to opt-out collective actions, this review work will also consider alternative routes consumers could use to seek redress. The ability to bring a private action is an essential part of our justice system; however, litigation can be complex, costly, and protracted. Bringing a claim should not be the primary route to redress for consumers where they have suffered loss as a result of anti-competitive behaviour.

We therefore would like to consider how the opt-out collective actions regime intersects with tools such as alternative dispute resolution (ADR) and voluntary redress schemes, and how these options could be more attractive and effective. Having the choice to bring a private action is an important legal right. However, we believe that there may be other more appropriate routes that may reduce the burden on both consumers and businesses.

Scope

We intend to review the opt-out collective actions regime in its entirety to best examine whether and what changes would be beneficial.

Key areas in scope include:

• access to, and the framework for, funding cases within the regime
• scope and certification of cases
• ADR, settlement, and damages
• distribution of funds

Questions

Access and funding

Bringing a claim before the CAT can be costly, making it difficult for individuals and small businesses to commence litigation. The opt-out collective actions regime intends to mitigate this barrier. However, options for sourcing funding for claims are limited and the expense could still be limiting access to justice.

We are conscious of and, alongside the Ministry of Justice, are considering recommendations made by the CJC in its review of litigation funding more widely, published on 2 June 2025^{[footnote 5]}. However, we are also conscious of the value and complexity of cases brought under the opt-out regime, as well as the quantum of litigation funding invested in it.

The unique relationship between funder, class representative and class members present in the opt-out regime means that it is likely that a bespoke policy approach may be required to serve these cases. Findings from the CJC’s review are of interest to this review. However, we welcome responses related to funding questions as funding is applied specifically to the opt-out regime.

Q1. Is the regime currently affordable to a diverse range of classes?

If not, how do you think the current cost of bringing a claim impacts on how claims are funded?

Where third party litigation funders are used, are you aware of the cost of a claim having an impact on competition between litigation funders able to finance such a claim? If so, how?

Where third party litigation funders are used, do you consider that the cost of a claim under the regime influences funders’ decision-making in relation to what cases to support? If so, how?

Q2. Do you consider the way litigation funders’ share of settlement sums or damages awards is approached currently to be fair and/or proportionate? Please provide reasoning to support your answer.

How could it be improved?

Q3. We are aware that recommendation 57 made by the CJC in its report on litigation funding proposes the introduction of an Access to Justice Fund. However, we would like to explore options for funding cases in the context of the CAT specifically.

Are there lessons to be drawn from other models of funding that could support access to the regime?

For example, Contingent Legal Aid Funds provide financial support for cases where funding would otherwise be unavailable, with the fund being replenished by a portion of settlement sums or damages where a case is successful. An example of this is the Ontario Class Proceedings Fund in Canada.

Q4. How has the secondary market in litigation funding developed? Do you consider that there have been any subsequent impacts on transparency and client confidentiality?

Q5. The CJC made recommendations in its report on litigation funding in relation to terms and approval of litigation funding agreements (for example, recommendations 19 and 20). However, we would like to understand more about litigation funding agreements used in cases before the CAT specifically.

Are funding agreements fair and transparent for class members and clear for the court to understand?

• If not, why?

• How could they be improved?

Q6. Is funding provision for the full potential cost of a claim sufficiently considered on the commencement of claims under the regime?

Q7. Recommendation 15 of the CJC report on litigation funding proposes a binding dispute resolution process for funders and funded parties. However, we would like to explore further how conflict between litigation funders and class representatives could be approached.

To what extent should extra-curial dispute resolution be used or required to be used to resolve conflict between the funder and class representative or class?

Scope and certification of cases

The CAT must carry out a certification process for all proposed opt-out collective actions, to prevent ineligible claims from progressing in that form. In recent years, as the opt-out caseload has increased so has the range of cases certified by the CAT.

It is important that judicial independence is preserved in relation to this decision-making, and we are not seeking to comment or take a view on specific decisions made by the judiciary.

However, we would like to consider the elements of a certification decision and welcome evidence and views on trends in certification. We would also welcome consideration more widely of ways in which clarity on liability exposure could be increased for businesses.

Q8. Is the current scope of the regime appropriate?

Q9. How are cases which cut across multiple areas (for example, environmental protection or data) dealt with?

Is this appropriate?

Are certification decisions sufficiently predictable and transparent for parties?

Q10. What approach should be taken if the same issues are concurrently being investigated by the CMA and brought before the CAT?

Q11. Do you consider that there is currently sufficient certainty for businesses in relation to the level of liability they face under the opt-out collective actions regime?

If not, why?

What additional measures do you consider could be introduced to provide increased certainty?

Q12. Are there circumstances where it would be appropriate to provide protection to businesses from liability?

For example, might this be a consideration in certain circumstances in which businesses have cooperated with the CMA in a prior investigation?

Q13. Should there be specific requirements in order to be eligible to act as a class representative?

Q14. Do you feel the current rules for class representatives are clear enough regarding the relationship between the class, class representative and funder and how to manage potential conflicts of interest?

Whilst we are aware that conflicts of interest between funders and funded parties are covered in recommendation 14 of the final report in the CJC’s review of litigation funding, we are interested in exploring this topic in the unique landscape of the opt-out regime.

Q15. Should there be more defined rules on what cases can be certified as opt-out proceedings?

ADR, settlement and damages

The key driver behind the introduction of the opt-out collective actions regime was to make access to redress more straightforward and cost-effective. Collective actions also provide a clear deterrent effect.

However, litigation is not the only option for pursuing compensation, and – for the benefit of both potential claimants and potential defendants – other routes to redress may be more effective. We also want to examine what remedies are considered, and whether there could be alternatives to financial damages.

Q16. Do you have any experience of involvement in ADR to resolve a loss suffered by consumers as a result of anti-competitive behaviour?

If so, what kind of ADR have you engaged in and how common is this in your experience?

If not, why not? What would make it more likely for you to consider this option in the future?

To what extent does the prospect of engaging in ADR deter businesses from wrongdoing?

How far do you believe that appropriate redress for class members can be achieved by ADR?

Q17. Voluntary redress schemes were introduced by way of amendments to the Competition Act 1998 through the Consumer Rights Act 2015. They offer an avenue for redress by way of schemes voluntarily set up by businesses and approved by the CMA.

Are you aware of the option of voluntary redress schemes and under what circumstances a voluntary redress scheme could be used?

If yes, for what reasons would you or would you not be inclined to either use or advise the use of a voluntary redress scheme following an adverse finding by the CMA?

Noting that they have not yet been utilised, what reforms could be made to voluntary redress schemes to increase their use?

Q18. Do you consider that additional alternative routes for redress could reduce the need for litigation? For example, could empowering the CMA to issue directions for redress reduce the need for private action?

Q19. What barriers do you consider there are to pursuing alternative routes to redress, such as ADR, voluntary redress schemes, or similar potential options outside of, or prior to, litigation?

How could greater use of these alternative routes be facilitated?

Q20. Do direct financial, rather than cy-pres, damages deliver justice effectively?

If not, what might alternatives look like?

Q21. What degree of influence, if any, do you consider litigation funders currently have over the resolution of a case?

For example, whether/when to settle or pursue an award of damages. We are aware that the CJC has made recommendations in relation to the level of influence funders should have over settlement in particular in its report on litigation funding (for example, recommendation 12), but would like to explore perspectives on to what extent this is currently an issue in cases before the CAT.

Q22. What safeguards do you consider could be implemented to mitigate the risk of litigation funders inappropriately influencing a case, or to help identify where such influence has been exerted?

Q23. Should remedies other than compensatory damages be available?

If so:

• Why?
• What types of remedies?
• Should the availability of restitutionary damages be considered?

Q24. What factors might incentivise you to settle or advise settlement rather than continuing to judgment before the CAT?

Q25. To what extent do you think it would be beneficial for the CAT to have increased oversight of settlement/a stronger role in approving settlement agreements between parties?

Q26. What should happen to unclaimed funds from a settlement agreement?

Distribution of funds

There are a number of practical issues involved in distributing damages among a potentially extremely large class, both in the mechanics of how funds are delivered and the sequence in which funds are distributed (for example, between funders and class members).

It can be difficult to predict how many consumers will come forward to claim their share, and while the cumulative total is high, individual consumers may take the view that the amount of redress available to them is not worth the steps required to claim it. This presents the potential for unclaimed damages, which – under the current regime – go to the Access to Justice Foundation.

Q27. How are funds distributed among consumers?

How could this be improved?

Q28. Are consumers made sufficiently aware of proceedings/their right to claim their share of damages by current notice requirements?

If not, how could awareness be improved?

Q29. The quantum of damages can vary from case to case. For example, out of the recent Merricks settlement of £200 million, £100 million was set aside for class members. Of this, individual class members can expect to receive approximately £45 each and no more than £70.

To what extent do you consider that this return is meaningful for individual class members?

Q30. What should happen to unclaimed or residual damages?

Should different expectations be applied to settlements?

Closing question

Q31. Is there anything else that you would like to share regarding the operation of the opt-out collective actions regime?

Issued on

6 August 2025

Respond by

11:59pm, 14 October 2025

How to respond

To respond to this call for evidence, either submit your responses via Qualtrics, or by emailing collectiveactions@businessandtrade.gov.uk.

Next steps

Once the call for evidence has closed, we will review and analyse the responses received. This will inform proposals for change to the opt-out collective actions regime, which will be subject to consultation.

1. While the exact total value of claims sought is not available, the order of magnitude can be estimated to be in the tens of billions. A report by CMS estimated that as of December 2023, the value of UK opt-out claims was around €66 billion (~£57 billion), a significant increase from around €12 billion (~£10 billion) in 2016. The total value of all opt-in and opt-out claims was estimated to be around €145 billion (~£124 billion) in 2023. European Class Action Report 2024 ↩

2. Review of Litigation Funding – Final Report ↩

3. The exact total spend on legal fees is uncertain and not split by opt-out and opt-in cases. The order of magnitude can be estimated to be in the region of the hundreds of millions of pounds. Legal costs faced in some cases have reached tens of millions each. One estimate finds legal fees of around £1.3 billion (Law.com International). ↩

4. Private actions in competition law: a consultation on options for reform. Final impact assessment ↩

5. Review of Litigation Funding – Final Report ↩