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Authors: Ben Ball, Rachel Malloch, Alice Chung, Elisha Kemp, Nanret Senok
In July, the UK government launched a consultation on a series of proposals designed to “simplify and improve” the efficiency of opt-out collective actions (Chapter 1), regulatory appeals (Chapter 2) and competition enforcement (Chapter 3). The proposals were billed as the continuation of the government’s pro-growth agenda. They follow the government’s January 2026 consultation on mergers, markets and CMA governance reform, as well as its October 2025 collective actions call for evidence, a decade-on stock-take of the UK’s opt-out collective actions regime (our earlier response to the call for evidence is available here).
The banner is “swifter and simpler”, and while some proposals meet that promise, others risk shifting delay and burden elsewhere. In this post, we look at the key proposals and summarise our views. Our full consultation response is available here.
Chapter 1 — Opt-out collective actions
| Proposal | Our take |
|---|---|
| 1. Raise the bar for certifying class actions. Bring the merits of a claim into the certification criteria by abolishing the relative suitability test in favour of an absolute suitability test. Make the cost-benefit analysis a standalone hurdle. | Support. An absolute suitability test should enable the CAT to consider the merits of a claim at certification. But, to ensure that the merits of claims are considered in all cases, additional factors should also be included in the suitability assessment (in particular, the likelihood of the claims succeeding at trial). The cost-benefit analysis should be elevated to a standalone criterion. |
| 2. Greater certainty about class representative authorisation. Views sought on how to clarify the case-law requirements for who can be authorised and how they should conduct proceedings. | Support, with qualifications. The rules should cover advisory panels, costs specialists, funding evidence and transparency on funding terms. |
| 3. Give funders and defendants early visibility on likely funder returns. The Tribunal would indicate the reasonableness of expected funder returns at certification. | Support. An indicated range at certification gives all sides real certainty up front, without locking the Tribunal into a fixed figure. |
| 4. Introduce filing fees in the CAT. Fees would scale with claim value, subject to a cap, and apply only to private litigation. | Support, with an access-to-justice floor and a high cap. In order to encourage more realistic claim values from the outset, fees should reflect the scale of reported claim valuations – this means fees for collective actions should scale well above the courts’ current £10,000 ceiling for the largest claims. |
| 5. Rule amendments to encourage ADR and settlements. Allow the Tribunal to mandate mediation and impose cost sanctions where parties unreasonably refuse to engage. Introduce Rule 45 settlement offers with automatic cost-shifting consequences. | Oppose. The Tribunal already has powers to order mediation and impose costs sanctions. Offers with automatic costs sanctions would be difficult to apply to settlements which require judicial approval. None of the proposals would engage with the key barriers to settlement in the regime. |
| 6. Increasing efficiency through panel composition changes. Proposal to amend the rules to increase flexibility in panel composition. Views sought on whether changes to the settlement approval process could be made to increase efficiency. | Support, with qualifications. A Chair sitting alone could hear straightforward collective settlement applications as well as strike-out and summary judgment applications of a purely legal nature. But having two panel members may lead to divided panels. Where settlements are reached after trial it is likely to be more efficient for the trial Tribunal to hear the approval application. |
| 7. Simplify and expand the use of CMA redress schemes. Simplify the requirements for redress schemes, provide greater certainty around protection from duplicative damages liability and introduce CMA mandated redress. | Cautious. While the proposals might improve the attractiveness of redress schemes, they do not eliminate the risk of private litigation and would remain difficult to administer (other than in straightforward cases), so are unlikely to result in a very significant uptick in the use of redress schemes. |
| 8. Shield first-in leniency applicants from private damages. Full immunity for Type A applicants, but with Tribunal power to set aside. | Rationale supported, but not clear-cut. Ensuring businesses have the necessary incentive to apply for leniency could ultimately bolster both public and private enforcement. But careful consideration of whether this proposal would significantly improve leniency uptake and the impact of this proposal on class recovery, cartelists’ liability and the deterrent effect of private enforcement is needed. |
Chapter 2 — Regulatory appeals
| Proposal | Our take |
|---|---|
| 9. Change of forum: from the CMA to the CAT. Transfer regulatory appeals in energy, water, telecoms and aviation (including price control redeterminations) from the CMA to the CAT. | Cautious. The case for a transfer from the CMA to the CAT has not been made out, in particular with respect to price control appeals. The CMA already has the combined economic, financial, legal expertise and resource / staff needed to handle these appeals, as well as the experience and procedural tools to do so effectively and efficiently. A key risk is longer resolution times and greater uncertainty for key decisions which affects stakeholder confidence, investment and customer bills. More generally, we question whether this is the right time, noting (i) applicable regulatory frameworks (notably in water) are already undergoing significant reform and therefore uncertainty, and (ii) the unprecedented level of investment which will be needed to secure resilience and achieve net zero targets and other policy goals. |
| 10. Towards a harmonised “JR+” appeal standard. Replace sector-specific appeal standards with a single “judicial review with due account of the merits” test. | Oppose. The existing standards are well established. By contrast, the new standard is ambiguous and risks reducing effective challenge of regulatory decisions for essential services. This is particularly the case if the new standard does not specifically provide for effective review of the exercise of discretion by regulators, at a pivotal moment for regulated utilities. |
| 11. Harmonised eligibility criteria to appeal and intervene. A common test across sectors for who may bring or intervene in a regulatory appeal, with a CAT permission stage. | Cautious. Harmonisation should not reduce existing clarity or narrow the ability of materially-affected parties to bring or participate in appeals. If the standard of review is harmonised across sectors, consideration should be given to stakeholders in other sectors having standing to intervene in appeals in another, where interpretation of the standard could have a read across to other sectors. |
Chapter 3 – Competition enforcement
| Proposal | Our take |
|---|---|
| 12. Allow the CMA to define its decision-making process. Remove the statutory requirement for independent decision-makers, leaving the CMA to set its own model in guidance. | Oppose. Having decision-makers independent of the case team guards against groupthink and produces better decisions. |
| 13. Give the CMA greater discretion to manage confidentiality claims. Amend or remove the requirement on the CMA to give parties reasonable opportunity to make representations on confidentiality. | Oppose. The CMA is not best placed to judge the sensitivity of businesses’ information. Reducing safeguards around information undermines trust and confidence in CMA processes. |
| 14. Require a waiver of appeal rights as part of settlement. Introduce a statutory requirement on settling parties to agree not to challenge or appeal the infringement decision. | Support. Already required by CMA guidance, but the waiver must not prevent challenges to matters outside what was agreed. |
| 15. A prescribed legal framework for confidentiality rings. | Cautious. While there is scope to reduce template negotiation, negotiation cannot be entirely avoided and a prescribed legal framework is not required. |
| 16. Revise the competition disqualifications orders (CDOs) regime. Allow the court to have regard to overseas conduct and clarify that CDOs can be made against former directors. | Mixed. Oppose extending to overseas conduct given concerns around process safeguards. How to address former directors needs to be considered in light of the public policy intentions. |
| 17. An alternative penalty cap for undertakings with no turnover up to £300,000. | Cautious. The CMA must always consider and explain why the standard 10% cap should not apply. |
The government’s consultation closed on 25 September. Early indications are that the Burnham government remains committed to delivering on these reforms. It is expected that at least some of these proposals will be taken forward in legislation alongside the mergers and markets proposals when parliamentary time allows.
We discuss our views on each of the key proposals in further detail below:
What’s proposed?
Proposed class representatives need permission from the CAT to bring competition class actions. The current legislation says that claims are only eligible to be brought as competition class actions if they (a) are brought on behalf of an identifiable class of persons; (b) raise common issues; and (c) are suitable to be brought in collective proceedings. Since the Supreme Court’s December 2020 decision in Merricks v Mastercard, the CAT has not been permitted to consider the merits of claims as part of its assessment of their suitability. Accordingly, no merits threshold is generally applied at certification.
There is also no formal requirement for the CAT to satisfy itself that the benefits of class actions are likely to outweigh their costs, although it has recently begun to consider this as one element of its overall suitability assessment. It has, therefore, previously certified class actions which it considered would have a negative cost-benefit balance (and which have ultimately failed).
To address this, the government proposes tightening the test for certifying opt-out collective actions in three ways. First, moving from a comparative test of suitability (is the case more suitable for collective proceedings than for individual claims?) to an absolute test (is it suitable for collective proceedings at all?). Second, making the cost-benefit analysis part of the statutory certification threshold test. Third, requiring the Tribunal to consider whether there is sufficient evidence to properly try a claim for aggregate damages as one of the factors relevant to certification.
Our take
We support the direction of travel. The Tribunal’s and litigants’ resources are currently being spent on claims which are very expensive to litigate and some of which are perceived as having relatively low prospects of success. Introducing a merits test and elevating the cost-benefit analysis into a standalone hurdle should address this.
As regards the merits of claims, the government’s proposal to abolish the relative suitability test in favour of an absolute one should enable the CAT to consider the merits of a claim at certification, but it would not “lock in consideration of the merits as part of the [certification] threshold” as suggested by the Consultation. To ensure that the merits of a claim are considered, the rules should also clearly spell out the factors the Tribunal must weigh when considering suitability. In particular: whether evidence can reasonably be expected to be available to prove the essential elements of the claim at trial, the novelty of an alleged infringement or theory of harm, and the overall likelihood of the claim succeeding at trial.
The cost-benefit analysis should be elevated to a standalone criterion. The CAT Rules could usefully include specific factors for consideration, such as the reasonably anticipated returns to class members and an assessment of stakeholders’ (i.e. funders and lawyers’) returns. Without this detail, the new test risks being read as narrowly as the current one.
Read our full response on the certification threshold (page 4)
What’s proposed?
Class representatives are the individuals or bodies who bring collective proceedings on behalf of an entire class. The rules on who can be authorised and how they conduct proceedings have developed through case law rather than through detailed drafting in the CAT Rules. The government seeks views on how to codify or clarify those requirements, so the standards are more predictable at the outset of a case.
Our take
We support greater clarity overall. There is scope to build in requirements around advisory panels, costs specialists, evidence about steps taken to secure funding, and transparency on funding terms. Those changes would improve consistency across cases and help ensure that class representatives run proceedings in ways aligned with the interests of the class members they represent. However, the rates at which class representatives or advisory panel members are paid should be left to the market rather than being dealt with through rules or costs capped by the CAT.
What’s proposed?
Funder returns are the multiples or percentages that litigation funders take from any damages recovered. The current position is that the reasonableness of a funder’s return is only tested at the end of a case, when the Tribunal addresses how damages are to be distributed. The government proposes that the Tribunal indicates the reasonableness of the expected funder return at certification, giving funders and defendants an early steer on where returns are likely to land.
Our take
We support this. We consider that an indication of the range of returns that the CAT considers to be reasonable at certification would give funders the certainty they need to price cases up-front, and would give defendants a sense of the settlement architecture they are facing. However, a single figure would be too rigid at that early stage. Providing a range would also assist the Tribunal in undertaking the abovementioned cost-benefit analysis.
Read our full response on funder return visibility (page 12)
What’s proposed?
Practice in the CAT is currently out-of-step with the High Court because the Tribunal does not charge filing fees. The government proposes introducing fees for private litigation before the CAT (opt-out and opt-in collective proceedings, and private damages actions), scaled by claim value and subject to a fixed cap. Public enforcement decisions and regulatory appeals would remain fee-free.
Our take
We strongly support this. Initial damages estimates put forward by class representatives in opt-out proceedings often run into billions. Fees should scale accordingly and should encourage class representatives to provide more realistic claim values from the outset. To protect access to justice and avoid unreasonable burdens, we propose that no fee would be payable for claims up to a minimum value (e.g. £1 million), and a cap could be set well above the current £10,000 cap on High Court issue fees. On our data, a properly designed fee regime might have raised around £2 million under the current caseload.
Read our full response on filing fees (page 28)
What’s proposed?
The government proposes empowering the CAT to encourage or require mediation between the parties, in particular after the exchange of expert reports. It also proposes that the CAT should take into account parties’ unreasonable failures to engage in ADR, or comply with an order to do so, when assessing costs. In addition, the government proposes the introduction of settlement offers with automatic costs shifting, similar to Rule 45 offers which are available in individual damages claims before the CAT.
Our take
The Tribunal’s existing powers enable it to stay proceedings for, or order the parties to engage in, mediation. A default position should not be applied by the rules because Tribunal members are the best judges about whether, and when, to make such an order. In a similar way, the CAT’s existing discretion as to costs would already enable it to take into account a party’s unreasonable failure to engage in ADR.
It would be difficult to determine whether a party had beaten a Rule 45 offer in a collective proceedings context because opt-out settlements need to be approved by the Tribunal, which may include amendments to their terms. The key commercial terms of collective settlements are also broader than just the damages sum to be paid.
In any event, none of these proposals engage with the key barriers to settlement in the regime, including: (i) businesses’ difficulties making reasonable estimations of their exposures to claims with low prospects of success but large headline damages estimates, and (ii) the prospect of settlements incentivising similar claims in other jurisdictions.
Read our full response on encouraging ADR and settlement (page 15)
What’s proposed?
The government has proposed increasing flexibility in panel composition to allow for panels of one or two members to sit in more circumstances. It has also sought views about whether changes should be made to shorten the collective settlement approval process.
Our take
A Chair sitting alone could appropriately deal with strike-out and summary judgment applications of a purely legal nature as well as straightforward collective settlement applications. The possibility of a Chair sitting with a single other member should be approached with caution because of the possibility of a split within the panel. Certification decisions and final judgments should require a full three member panel.
Where settlements are reached after trial it is likely to be more efficient for the trial Tribunal to hear the application for a collective settlement approval order. This would avoid the need for a separate settlement Tribunal to invest time developing a sufficient understanding of the case to determine whether the settlement is just and reasonable.
Read our full response on panel composition: generally (page 30) and for collective settlement approval (page 18)
What’s proposed?
The CMA currently has the power to approve voluntary redress schemes but to date this power has never been exercised, largely driven by concerns around the complexity of the process and lack of certainty around protection from private litigation. The government is consulting on possible options to simplify the voluntary redress regime – including a simplified approach to assessing quantum, simplified requirements for obtaining CMA approval and more clarity around protection from duplicative damages. It is also considering giving the CMA the power to mandate redress.
Our take
We think that an assumed level of overcharge is unlikely to be appropriate given the complexity of most cases and could lead to significant under- or over-compensation. A simplified process to design and administer schemes could improve their attractiveness to some extent. However, the governments' proposals would not eliminate the risk of private litigation, and we expect that that would be likely to continue to blunt incentives to pursue voluntary redress.
CMA mandated redress might incentivise voluntary take-up in some cases, but this would depend on whether businesses perceive mandated redress as credible and realistic. The CMA itself recognises that mandated redress would be for use in appropriate – largely straightforward – cases only.
What’s proposed?
The government is exploring whether to grant full immunity from private damages to Type A (first-in) applicants, subject to a Tribunal power to lift the immunity where damages would otherwise be unrecoverable, for example on the insolvency of co-cartelists.
Our take
We support the rationale (to ensure businesses have the necessary incentives to apply for leniency) but the case for this proposal is not clear-cut. Full immunity for the first-in applicant shifts civil liability onto the remaining cartelists, which raises issues of fairness / discrimination. It may potentially deter later applicants from coming forward (impacting the CMA’s ability to build its case), since only Type A gets immunity. The expected uptick in leniency applicants is also uncertain: while this may provide greater incentive for leniency applications regarding domestic cartels, its impact is likely to be much more limited for global cartels, particularly where other major jurisdictions, notably the European Commission, have previously considered and rejected this proposal.
Read our full response on Type A leniency and private damages (page 22)
What’s proposed?
Regulatory appeals against decisions made by regulators including Ofgem, Ofwat, Ofcom, the CAA and the Utility Regulator in Northern Ireland are currently heard by the CMA. The government proposes to transfer that jurisdiction to the CAT. The rationale is to consolidate regulatory appeal work in the CAT and free the CMA to focus on its enforcement and markets functions.
Our take
The CMA has spent many years developing the combined economic, financial and legal expertise these appeals need, and its inquisitorial approach suits complex utility cases, particularly in relation to price control decisions. The CMA is also able to recover its costs. The CAT is already carrying a record caseload and is under courtroom-capacity pressure. Slower, more adversarial appeals in the CAT could result in appeals and redeterminations being decided well into the operation of the relevant price control or licence modification, impacting customer bills and prolonging uncertainty for businesses and their investors.
Read our full response on hearing regulatory appeals in the CAT (page 33)
What’s proposed?
The government proposes to replace the current sector-specific standard of review for regulatory appeals with a single, harmonised standard: judicial review with due account of the merits (referred to as JR+). It also proposes to remove the appellate body’s power to substitute its own decision for the regulator’s, leaving only the power to quash and remit.
Our take
“JR+” is ambiguous as a standard which has applied to very few cases in only one regulated sector so far. We are concerned that harmonisation to the proposed standard could reduce effective scrutiny of regulatory decisions across the board, and particularly for complex price control decisions. Removing the power to substitute a decision also risks a remittal loop, where the regulator retakes the same decision and the process starts again, rather than a swifter final answer. Taken together, the proposals risk increasing uncertainty and downgrading appellate rights at a pivotal moment for regulated utilities.
Read our full response on the regulatory appeal review standard (page 37)
What’s proposed?
Who can bring or intervene in a regulatory appeal today depends on the sector: some frameworks are relatively narrow (limited to licence-holders), others are broader (opening the door to consumer bodies and materially-affected persons). The government proposes to harmonise the position with a common eligibility test across sectors, and to introduce a CAT permission stage for both appeals and interventions.
Our take
Harmonisation should not narrow the ability of materially-affected parties to bring or participate in appeals; the sector-specific rules today give greater clarity on which parties have standing than a single, harmonised test may provide. Any harmonised regime should carry a permission threshold that filters out unmeritorious, duplicative and frivolous claims while preserving legitimate rights of challenge and intervention.
If regulatory appeals move to the CAT and/or the legal standard is harmonised across sectors, the intervention rules should also recognise the interests of stakeholders in one sector in an outcome of appeals in another sector, given CAT decisions will carry precedential weight beyond the sector in which they were decided.
Read our full response on eligibility to appeal and intervene (page 44)
What’s proposed?
The CMA’s current enforcement process (under the Competition Act 1998) requires independent decision-makers, drawn from outside the case team, to take the final infringement decision and set penalties. The government proposes to remove that statutory requirement and let the CMA set its own decision-making model in guidance. The rationale is to remove a structural driver of delay in long enforcement cases.
Our take
Independent decision-makers, provided for by statute, are a check against groupthink and lead to better final decisions, meaning fewer appeals over the long run. Where recent CA98 cases have taken time, the primary cause for this has been the CMA re-cutting its case through multiple rounds of statements of objections, not the split decision-making model. Removing the independence check will not fix the underlying issue and will erode a rights-of-defence safeguard.
Read our full response on the CMA’s decision-making model (page 46)
What’s proposed?
When the CMA proposes to publish information identified by a party as confidential, it is currently required to first give that party reasonable opportunity to make confidentiality representations. The government proposes to amend or omit this requirement, giving the CMA discretion over when to consult. The stated aim is to speed up investigations.
Our take
The CMA is not best placed to judge the confidentiality of parties’ information. Reducing safeguards is likely to undermine trust and confidence in CMA processes and may make parties more reluctant to hand the CMA business secrets. The current process is efficient, ordinarily involving one or two rounds of representations and is not a core driver of the length of cases.
What’s proposed?
The government proposes to provide for an express statutory requirement that settling parties agree, as a condition of settlement, not to challenge or appeal the resulting infringement decision.
Our take
The position is already reflected in the CMA’s settlement guidance; we have no principled objection to codifying it in the CA98. But the waiver should bite only once the final decision reflecting the agreed settlement terms is issued, and should not prevent challenges to matters outside what was agreed.
What’s proposed?
A prescribed legal framework for confidentiality rings to support a faster and more standardised approach.
Our take
A prescribed legal framework is not required but there is scope for updated template wording (reflecting CMA learnings) to reduce template negotiation. If a prescribed framework is taken forward, government and the CMA will need to carefully design a framework that appropriately preserves rights of defence while also safeguarding confidential information (including third party confidential information).
Read our full response on access to evidence and confidentiality rings (page 50)
What’s proposed?
The government proposes two key changes: allowing a court to take account of a person’s conduct as a director of an overseas company when making a CDO; clarifying that CDOs can be made against former directors.
Our take
Extending CDOs to overseas director conduct would not be appropriate in circumstances where it would not be possible to properly protect a director’s rights of defence. A UK court would have limited ability to test whether a director benefited from sufficient legal safeguards overseas and Hollington v Hewthorn constrains the extent to which a UK court can rely on foreign courts’ findings.
The disqualification of former directors is a public policy question, but former directors must receive all necessary procedural rights. This may slow down processes with limited public policy gain, but this is a matter for the CMA to consider and weigh.
Read our full response on CDOs (page 55)
Litigation, Arbitration & Investigations Partner, London
United Kingdom
Litigation, Arbitration & Investigations Partner, London
United Kingdom
Litigation, Arbitration & Investigations Senior Counsel, London
United Kingdom
Partner and Head of UK Antitrust and Foreign Investment Group, London
United Kingdom
Antitrust & Foreign Investment Partner, London
United Kingdom
Antitrust & Foreign Investment Partner, London
United Kingdom
Antitrust & Foreign Investment Partner, UK Technology Sector Leader, and Games and Interactive Entertainment Sector Leader, London
United Kingdom
Antitrust & Foreign Investment Partner, London / Dublin
United Kingdom
1 October 2026
What’s proposed?
The CMA’s usual power to fine is capped at 10% of an undertaking’s worldwide turnover. The government proposes to introduce an additional penalty cap of up to £300,000 where the undertaking has no turnover or no representative turnover.
Our take
While we do not object in principle, the CMA should always be required to first consider and explain why the standard 10% cap is not appropriate. £300,000 is a very significant sum for pre-revenue businesses. For example, if activities relate to R&D which has not yet been successfully marketed, such a penalty could impede the prospects of those R&D activities coming to fruition.
Read our full response on penalty caps (page 56)