Coll v Google: certification update

The Competition Appeal Tribunal (CAT) has handed down its written judgement on Elizabeth Coll’s claim against Google concerning alleged anti-competitive behaviour. We provide an overview of the key findings.

Facts of the case

In July 2021 Elizabeth Coll as Proposed Class Representative (PCR) issued a claim against Google in the Competition Appeal Tribunal (CAT) concerning alleged anti-competitive behaviour arising from Google’s Play Store App.

Ms Coll applied for a collective proceedings order (CPO), which was granted by the CAT “on the spot” in July 2022 pending a written judgment.

The CAT’s written judgment has now been handed down. An overview of the key findings are below.

Competition Appeal Tribunal’s findings

1. Notwithstanding that Google did not object to the CPO application, the CAT’s preference was for the CPO application to be heard at an oral hearing rather than be dealt with on the papers.
   
   The CAT was careful to stress in its judgment that it is not saying that it will never be appropriate to determine CPO applications on the papers. However, this was not the occasion to do so “given the developing nature of the relevant case law, procedure and practice relating to CPO applications generally”.
   
   The CAT also did not consider that the PCR’s offer to answer any questions in writing that the CAT might have would be a satisfactory substitute for an oral hearing, or necessarily prove to be a cost or time effective alternative.
2. The CAT was satisfied that the ‘authorisation condition’ had been met, which was unsurprising given Ms Coll’s experience and credentials. However, as part of its consideration of this issue the CAT took into account Ms Coll’s proposals for funding and insuring the proceedings and, in particular, several specific concerns that had been raised by Google’s lawyers in correspondence.
   
   These included concerns regarding the litigation funder’s financial arrangements with its own lenders and, specifically, whether or not the availability of funding for this case is ring-fenced or is in some way dependent on the outcome of other cases funded by the funder, such that the possible future funding of the proceedings is in doubt.
   
   The CAT placed weight on the fact that the funder in question is a member of the Association of Litigation Funders of England and Wales and, therefore, subject to a voluntary code of conduct.
   
   In addition, the CAT was referred to its previous finding in the UK Trucks litigation that “it is wholly unrealistic to suppose that a leading litigation funder that is commercially active in this field would not honour these commitments to the Association”.
   
   The CAT did not, therefore, share Google’s concerns regarding the funding structure and ultimately concluded that Ms Coll has arranged adequate funding to pursue the litigation effectively.
3. As part of its consideration of the ‘eligibility condition’, the CAT assessed whether issues of loss are common to the proposed class and reference was made to the Pro-Sys test laid down by the Canadian Supreme Court, which provides that at the CPO application stage the threshold for expert methodology is low. The CAT recognised that Ms Coll’s experts’ reports at this early stage of the proceedings “are necessarily preliminary and provisional… in particular given that disclosure has yet to take place” and was satisfied that the low threshold had been met.
4. Finally, the CAT approved Ms Coll’s proposed dual approach of an opt-out claim for UK claimants and an opt-in claim for overseas claimants.

In summary

The CAT’s judgment is a pragmatic and sensible one, which should give confidence to all of its users but particularly PCRs bringing CPO applications with the backing of a litigation funder.

It is clear that the CAT was careful to assess the specific funding arrangements put in place by Ms Coll and, notwithstanding the concerns raised by Google, was satisfied that the relevant statutory requirements under the Competition Act 1998 had been met.

In addition, the fact that the CAT insisted on an oral hearing taking place demonstrates that it recognises its important role in developing this area of the law, which is vital given the increased number of cases we are seeing being filed in the CAT.