Call for evidence outcome

Opt-out collective actions regime review: summary of call for evidence responses

Updated 17 July 2026

Executive summary

The opt-out collective actions regime review call for evidence (CfE) ran from 6 August 2025 to 14 October 2025 and attracted around 100 responses.

Respondents included:

• class representatives
• academics
• legal practitioners
• businesses
• funders

Views were strong but varied significantly, including on the timeliness of the review. There is particular tension between the need to preserve access to justice and a route to redress, and the need for legal certainty and proportionality for business.

Access and funding

Responses to the CfE indicate a clear split between stakeholders. On the consumer/claimant side, feedback focuses on how the regime delivers access to justice and plugs a gap left by public enforcement, also noting the diversity of those that benefit. On the defence/business side, feedback highlights perceived economic and investment risks caused by increased litigation.

Third-party litigation funding is widely acknowledged as fundamental to the regime, but is controversial. While its access to justice benefits are noted in some responses, others raise concern about the risk of exploitation of the regime for profit.

Concerns were also raised about the potential for:

• misalignment between funders and funded parties
• prolonged uncertainty for parties and litigation funders in light of the PACCAR Supreme Court judgment
• withdrawal of litigation funders from the regime

Scope and certification of claims

There was again a clear divide in views on scope and certification of claims. Some responses cite:

• a low certification threshold
• a rise in speculative or novel claims
• the recharacterisation of non-competition issues as abuse of dominance claims
• a lack of effective ‘off-ramps’ post-certification

On the other side of the argument, responses raised that:

• a stricter certification test would risk a reduction in access to justice
• there was no clear evidence the regime was causing damage to the UK economy
• claims are often grounded in regulatory findings

The scope of the regime is divisive. While some stakeholders call for the regime to be tightened, limiting it to follow-on claims or removing abuse of dominance claims from scope, others call for it to be broadened to a wider range of claim types to better align with international comparators.

There was broad acknowledgement of the complexity of the role class representatives undertake. However, there was also concern raised that class representatives may be mere ‘figureheads’ in claims.

Responses indicated that greater clarity and consistency on the criteria for authorisation of class representatives would be helpful, with some concerns that class representatives may not always have a sufficient connection to the class.

Alternative dispute resolution (ADR), settlement, and damages

While ADR was viewed as a beneficial tool, mandatory ADR at an early stage of a claim or prior to filing was widely viewed as impractical due to the complexity of competition claims. However, there was support for greater encouragement of ADR by the Competition Appeal Tribunal (CAT) at key stages of a claim as it progresses.

Responses indicate a general view that the CAT’s powers in relation to settlement are appropriate and do not need to be extended. However, there was concern raised that the CAT can sometimes take an overly interventionist approach, and that the settlement process is slow and inefficient.

Distribution

It was acknowledged that there are few examples of distribution to draw from. However, increased public awareness of the regime and an ability to verify claim websites as genuine could improve take up and reduce concerns about fraud.

There was some support for the Access to Justice Foundation (AtJF) as the recipient of undistributed damages. However, there was not consensus on the treatment of undistributed settlement sums, with some considering that freedom for the parties to decide should be retained, and others taking the view that at least some should automatically go to charity.

How to read this summary

This is a summary of responses received to the Opt-out collective actions call for evidence (the ‘CfE’) that ran from 6 August to 14 October 2025.

Views in this summary reflect those expressed by respondents to the CfE. They are respondent perceptions and should not be taken as a view of the government. Views are not weighted by frequency and inclusion in this summary should not be taken as endorsement.

General

Around 100 responses were received to the opt-out collective actions call for evidence, with class representatives, industry groups, defendant businesses, academics, the advice sector, legal practitioners and litigation funders all represented. The volume of responses, and the careful consideration that was clearly taken in submitting them, are demonstrative of the significant impact and importance of this regime.

Responses show a strength of feeling, with diverging views from different stakeholders in most areas. There is consensus that the regime has expanded rapidly in recent years, but strong disagreement on whether this is a success. There are clear tensions in responses between the need for increased legal certainty for business and access to justice and accessibility concerns for consumers (both individual and business consumers).

Many responses take the view that the timing of the Department for Business and Trade’s (DBT) review is premature. At the time of the CfE’s publication, only one claim (Le Patourel v BT) had made it to judgment, and there was only one example of distribution to class members (Gutmann v SSWT).

While the regime has been in place for a decade, it has only been operating in earnest for around 5, following the Supreme Court judgment in Merricks in relation to the certification threshold. Some responses, for example, noted that a major judgment and a number of substantive trials are expected in the next 2 years.

The argument has therefore been made by several respondents that more time needs to be given for jurisprudence to develop and for the regime to mature before meaningful conclusions can be brought in relation to its operation and effectiveness.

Respondents expressing this view often also expressed concern that misleading or disputed claims are being made about the regime by those with a vested interest in seeing the regime curtailed or dismantled.

Concern about those with a vested interest putting forward a one-sided view has been expressed on both sides of the argument, directed either at businesses that would benefit from reduced liability risk or at lawyers and funders that may benefit financially from involvement in claims.

However, many respondents express concern about the regime in its current form and stress the need for reform. In particular, questions are raised about the quality of claims being filed following the Supreme Court judgment in Merricks, whether claims are truly benefiting class members or are of interest to consumers with a lack of meaningful redress thus far, the lengthy timescale for claims to progress before the CAT, and potential harm to the UK economy being caused by the regime.

While views on the timing of the review and the degree of change that is needed are varied, no responses received suggested that there was no room for improvement. Stakeholders from all perspectives made suggestions for reforms that could enable the regime to better deliver on its original objectives. The scale of these suggestions varies, ranging from tweaks to more radical changes. These are summarised in greater detail later in this document.

Generally, respondents noted the regime’s role – whether being achieved currently or still more ‘potential’ – in delivering redress to those harmed by anti-competitive behaviour where there would otherwise be no way for consumers and small and medium-sized enterprises (SMEs) to take on big business.

Note was also made by some respondents that private actions are filling a gap left by public enforcement, making a significant contribution to overall competition enforcement in the UK. Feedback from stakeholders from a claimant perspective highlights the breadth of demographics benefiting from the regime, not just limited to individual consumers but also benefiting SMEs and the public sector.

Access and funding

There is a stark contrast in views expressed about access to the regime. Some respondents refer to a marked increase in collective actions, particularly in light of the 2020 Supreme Court judgment in Merricks v Mastercard.

Research presented by one respondent notes that 68% of companies interviewed faced at least one collective action, with litigation now a board-level concern. Concern is raised by some stakeholders that the volume of private litigation poses a risk to the UK economy, with the jurisdiction becoming less attractive for investment.

Others dispute this view, noting that there are only around 34 live claims in the regime and highlighting the obstacles faced by prospective class representatives in bringing a claim. These obstacles include the significant cost of litigating (with claimant budgets often being £20 million and up) and the difficulty in obtaining third-party litigation funding.

Claims need to be commercially attractive to receive the support they need from funders, with several respondents stating that claims need to be valued in the hundreds of millions to receive financial backing. One respondent specifically referred to a follow-on claim they attempted to bring that had legal merit and was valued as worth at least £230 million; they were unsuccessful in obtaining funding.

It is widely acknowledged in responses received that third-party litigation funders are a necessity for the claims brought under the regime. Views on how well this operates and what this means for actual or potential class members differ.

Some stakeholders highlight funders’ role in furthering access to justice, and others flag the risk that reliance on funders results in the regime being exploited as a money-making tool. Those flagging this risk note that this could lead to the regime’s primary objectives being deprioritised and the majority of funds being spent on legal fees and funder returns rather than returning to the class.

Potential and real issues caused by misaligned interests between class representatives and funders are flagged in multiple responses, with the risk of disputes between funder and funded party on the conduct of a claim and how challenging dispute resolution can be highlighted in particular. However, many responses from legal practitioners (particularly from a claimant perspective) also observe that litigation funders generally operate appropriately and with sufficient independence.

To improve transparency and better align interests, many respondents highlight the benefits that could be brought by implementing recommendations made by the Civil Justice Council (CJC) in its report on litigation funding published in June 2025, with particular reference to the reversal of PACCAR.

Others note that litigation funding agreements (LFAs) are already now subject to unprecedented scrutiny, with many made publicly available on claim websites and some funders also publishing template LFAs on their own sites.

The public narrative in relation to funders is noted by some respondents as a risk to the regime, with the CJC’s review of litigation funding and DBT’s review of opt-outs being perceived by some as criticism of funders. More significantly, many legal practitioner and litigation funder respondents noted that the CAT’s current approach to funder returns and the uncertainty caused by PACCAR could disincentivise funders from engaging in the regime, and some stakeholders highlighted a drop-off in funded claims in recent years.

These respondents noted that without adequate funder returns, funding may ‘dry up’, and the regime will stall, asserting that a balance must be achieved between preserving the interests of the class and protecting funders’ legitimate interests.

Some respondents suggested permitting damages based agreements (DBAs) in the regime to reduce reliance on third-party litigation funders. Some legal practitioners note that this could enable solicitors to conduct smaller, socially valuable claims that would otherwise be uneconomic, also noting that permitting DBAs could increase affordability of the regime.

However, this is not an area that received consensus. Other respondents, including some litigation funders, noted that the original decision not to permit DBAs in the regime was right, highlighting that law firms are not well set up for the funding of claims. These stakeholders flag that the Solicitors Regulation Authority (SRA) currently has 95 open investigations relating to 76 firms in relation to their conduct (although these investigations relate to the handling of high-value consumer claims, rather than DBAs).

Other litigation funders took the view that law firms should be able to use DBAs, but that the regime still would not have a real future without the availability of external capital.

There was some support for exploring an access to justice fund or contingent legal aid fund (CLAF), with some stakeholders suggesting that this should be funded by undistributed damages, some suggesting it be administered by the AtJF, and some suggesting that it be administered by the government or CAT.

However, other respondents noted difficulties with the implementation and sustainable funding of such a fund or flagged that it was too early in the life of the regime to consider this option when there are so few examples of distribution to draw from.

Scope and certification of cases

Some respondents expressed that the scope of the regime was too permissive, with comments made by respondents, including defence and in-house legal practitioners and businesses, noting that the certification threshold is too low post-Merricks.

In particular, concerns were raised about novel and/or speculative claims being filed, with non-competition issues being recharacterised in the regime as abuse of dominance claims.

Business respondents in particular flagged the lack of ‘off-ramps’ in the regime post-certification, creating an unwarranted burden on defendants due to the bar for certification being low and the bar for strike out and settlement being high. Le Patourel v BT was cited in multiple responses, with BT only recovering £16 million of its over £26 million costs despite the claim being unsuccessful.

The view expressed by these respondents is that the regime is damaging the UK economy, citing delayed product launches, hundreds of millions spent, and growing scepticism of the UK as a reliable jurisdiction.

Strength of feeling in this area varies, but many respondents have proposed that the certification threshold should be revised to provide a stronger ‘filter effect’, with suggestions including increasing the weight of cost/benefit criteria and demonstrating social value and evidence of interest by the class.

A selection of respondents went further, with some suggesting that the regime should be limited to follow-on claims only, arguing that standalone claims are often based on novel theories and create an excessive burden for business without regulatory validation.

Others suggest that abuse of dominance claims should not be permitted, with some noting that the scope of abuse of dominance claims is being stretched to bring non-competition claims as opt-out collective proceedings.

However, respondents on the opposite side of the argument dispute concerns about the recharacterisation of non-competition claims, stating that – while most claims are technically standalone – many are rooted in regulatory findings made in other jurisdictions. Respondents in support of the regime note that the UK’s ranking in the Kearney foreign direct investment (FDI) confidence index has remained stable, suggesting that the UK’s prospects as a destination for FDI have not decreased.

Claimant-focused respondents further state that classes will often be a mix of demographics, including individual consumers, SMEs and public bodies that stand to gain from the regime, which has broad benefit for the UK economy through the enforcement of competition law.

Respondents expressing these views oppose making changes to the certification threshold, raising concern that it could protect those that have broken the law at the expense of those harmed by anti-competitive behaviour. They raise concerns that a new certification test may create a chilling effect that will halt the progress of the regime and hinder access to justice.

Consumer and claimant-focused respondents make the case for expansion of the scope of opt-out collective actions to specifically include data protection, environmental, and wider consumer protection litigation. These respondents state that opt-out collective actions being available only for competition claims is too restrictive and puts the UK out of step with comparable jurisdictions – for example, Canada, Australia, and EU member states such as the Netherlands.

Some respondents note that expanding the regime could address the costliness and complexity of litigation currently, with a consumer law claim likely to be a simpler and more cost-effective way of bringing some cases that currently can only be brought as a competition claim under the regime.

One law firm response notes that the current restriction on the availability of opt-out collective actions to competition claims means that it is necessary for claims for breach of consumer law, data protection, and environmental law to be repackaged as claims for breach of competition law.

The response raises that this adds unnecessary complexity and damages the regime more broadly, at odds with the interests of both consumers and businesses.

In relation to class representatives, many responses acknowledge the complex and difficult role that they take on, but emphasise the importance that they must not simply be a ‘figurehead’ in proceedings. Few responses stated that specific requirements (for example, particular qualifications or experience) should be in place for class representative eligibility, although some stated that some examination of their prior career may be helpful in assessing suitability.

However, there was concern raised about class representatives’ lack of connection to particular claims, with some suggesting that class representatives should also be a member of the relevant class. For example, a law firm response noted that this would carry benefits in terms of personal motivation, ensuring alignment of class and class representative interests, and facilitating a practice of requiring the class representative to prove the facts of their own individual claim.

However, respondents also acknowledged that restrictions on who may act as a class representative would reduce the pool of those eligible to act, especially for claims with smaller classes where there may not be a person with the skillset needed to take on the role.

While views on additional eligibility requirements for class representatives varied, there was broad consensus that additional guidance on existing requirements for class representatives would be beneficial. Some legal practitioner responses, for example, refer to decisions made by the Tribunal in various claims setting out differing requirements for authorisation to be given, including the use of consultative panels, advice from specialist costs lawyers, and direct involvement in negotiation of LFAs.

Many respondents state that it would be of assistance for both claimants and defendants to have increased clarity and consistency on requirements and the approach to class representative authorisation.

In relation to protection that could be offered to businesses that have co-operated with regulatory investigations, the CMA expressed concern that the increase in exposure to private litigation means that potential Type A leniency candidates have been disincentivised from coming forward, frustrating work to detect cartels. To address this, the CMA suggests that Type A leniency candidates should be eligible for immunity from private litigation.

However, concern was expressed by many legal practitioner respondents that offering such protection to businesses would violate the basic right to seek damages or leave consumers without a route to redress. Some respondents note that this approach has previously been explored and set aside and assert that offering protection from liability for leniency candidates would weaken justice.

However, some respondents, including academics and a minority of legal practitioners, note that there could be potential merit in considering such protection to encourage co-operation.

Alternative dispute resolution, settlement and damages

Many respondents noted that requiring alternative dispute resolution (ADR) in all claims prior to filing would be unrealistic, with respondents noting that early ADR is often difficult because of an asymmetry in information access and an unwillingness to engage by one or both parties.

However, suggestions were made to empower the CAT to encourage or even mandate ADR on a discretionary basis in appropriate claims or at particular stages of a claim where it is more likely to be beneficial – for example, once disclosure has taken place.

Some respondents suggested the use of neutral judicial evaluation either early in a claim or where there are deadlocks between parties. One defendant response emphasises that consideration should be given to staying claims to facilitate early ADR, particularly where an ADR mechanism was available but not used by the class representative prior to filing.

The response notes that filed claims pose a significant burden to businesses in irrecoverable costs and time even when unsuccessful at certification.

Several legal practitioner responses suggest permitting tools such as Rule 45 offers (where parties can face automatic costs consequences for declining a settlement offer when a less advantageous outcome is achieved at trial) to encourage parties to come together and engage in settlement discussions.

In relation to the use of voluntary redress schemes, there was broad consensus among responses that current requirements are too complex and would benefit from simplification. Law firm responses note that greater certainty that businesses would not be subject to duplicative litigation would be helpful – for example, by setting out more clearly that there is a presumption against certification where a voluntary redress scheme is in place.

The potential for the CMA to be empowered to order redress received mixed responses, with concern raised by some respondents about the impact such a new power could have on the CMA’s 4Ps framework (pace, predictability, proportionality and process), taking into account its limited resources.

Concern was also raised about whether the CMA has sufficient expertise to order redress, and how this might affect consumers’ ability to be compensated fairly and defendants’ ability to defend themselves.

Some responses note that empowering the CMA to order redress would be unlikely to meaningfully reduce the need for litigation. However, the CMA advocate for this power – while acknowledging that some cases may be too complex for this to be feasible – and other respondents noted that such a possibility may offer a meaningful alternative to litigation, although noting that litigation is likely to remain a preferable route despite the proposal’s potential benefits.

In relation to the CAT’s role in settlement, the vast majority of respondents felt that the CAT did not need any additional powers of scrutiny over settlement agreements, with many noting that the CAT’s approach currently is generally fair. The CAT’s important role in scrutinising and overseeing the settlement process was acknowledged. However, some respondents expressed caution over the level of control the CAT currently has over settlement agreements.

For example, some respondents expressed concern in relation to a perceived willingness by the CAT’s to ‘require privileged information to be disclosed in settlement hearings’, and a law firm expressed concern about the CAT’s willingness to ‘ignore commercial arrangements made at the start of a claim’ creating unhelpful uncertainty.

Comments by some note that the CAT should avoid taking too much of an ‘interventionist’ approach, and state that the bar set by the CAT for settlement is high, and – particularly in the face of merits not being considered at the certification stage – there should be willingness to agree settlements on commercial terms where there is realistically a low prospect of success for the claimant at trial.

Suggestions for improvement include the introduction of guidance in relation to what constitutes a fair settlement; no-fault settlement; and/or, a pre-action protocol.

Distribution of funds

Many responses made note of the fact that, at the time of publication of the CfE, there was only one example of distribution under the regime, with this claim not being indicative of how successful distribution may or may not be in the future. Having so few examples also was cited as an obstacle to assessing success or options for improvement at this juncture.

Despite there being few examples of distribution to draw from at this stage, many respondents noted that active involvement by defendants would be beneficial, with defendants potentially having the best understanding of how to contact and engage with their customers. Further, responses highlighted the benefit of ‘creative’ approaches to distribution where appropriate, rather than relying solely on cash payments to minimise unclaimed funds.

Stakeholders expressed that a lack of awareness among the public may be an obstacle to higher rates of take up at the point of distribution. Research presented by one respondent showed that 41% of people trust the courts, compared with only 15% trusting class representatives and 35% trusting lawyers, suggesting that official endorsement of distribution plans may be beneficial to take up.

Similarly, suggestions were made that there should be a government-hosted portal for claim information, standardised notification materials, stronger regulatory oversight, and more rigorous scrutiny of notice and administration plans at the certification stage.

In relation to undistributed damages, the AtJF received strong support in CfE responses to continue as the designated charitable recipient, particularly from respondents in the advice sector.

However, some respondents suggested that undistributed damages could go to a CLAF or access to justice fund to support the bringing of new claims, some noted that the AtJF’s focus means that funds are unlikely to contribute to work addressing issues faced by UK consumers, and some respondents also suggested that some element of reversion to defendants should be available.

Views on the approach to undistributed settlement sums were mixed, with some (particularly those in the advice sector) suggesting they should revert to the AtJF, some suggesting that it should be a requirement for at least a portion of undistributed settlement sums to go to an unspecified charity, and some taking the view that full flexibility for the parties to decide on approach – including possible reversion to defendants – should be retained to avoid any risk of disincentivising engagement in settlement discussions.

Closing summary

Responses to the CfE diverge significantly, reflecting the diverse experiences and perspectives of respondents. In particular, respondents’ views differ in relation to the proportionality of the regime in its current form and how best to balance access to justice and the burden on business. However, the need for greater consistency, clarity and efficiency in some aspects of the regime is a theme that has some consensus.

Overall, feedback indicates a view among respondents that there is scope to improve the regime to ensure that it is delivering on its original objectives, although some are cautious of reform at this stage. The themes set out in this summary have formed the basis of the government’s work to develop proposals for reform.