Series
Blogs
No easy catch: UK salmon claim falls short on cost-benefit analysis
No easy catch: UK salmon claim falls short on cost-benefit analysis
12 May 2026
Series
Blogs
12 May 2026
A consumer collective claim in the UK over the price of farmed Atlantic salmon has not made it past the first waterfall on its journey upstream. On 15 April 2026, the Competition Appeal Tribunal refused to grant a collective proceedings order in Waterside Class Limited v Mowi ASA & Ors [2026] CAT 32, following a certification hearing held on 4 March 2026. The Tribunal’s central concern was a stark mismatch between the proposed £20 million plus litigation budget and the modest sums which would likely reach individual consumers if the action were successful, particularly given very low take up rates in recent cases.
The judgment signals a tougher line on distribution plans for damages and settlement sums and likely uptake by the class, as well as overall costs-benefits assessment of proceedings at the certification stage. It also underscores the Tribunal’s readiness to block opt-out proceedings that appear to benefit lawyers and funders more than consumers.
Read below for more detail on the Tribunal’s decision.
The opt-out, standalone collective proceedings were brought against six producers of Atlantic salmon by the Proposed Class Representative, Waterside Class Limited (the “PCR”), on behalf of UK consumers who bought salmon products. The PCR alleges that the proposed defendants unlawfully colluded to increase the price of Atlantic salmon and that a portion of this increased price was passed on to consumers through higher retail prices. The PCR estimates the proposed class to comprise between approximately 35 to 44 million people (or between approximately 18 to 23 million households), with an alleged total loss in the region of £71 million to £382 million.
Although the proceedings were brought on a standalone basis, the PCR relied on the European Commission’s February 2019 dawn raids and its January 2024 Statement of Objections, in which the Commission expressed its preliminary view that companies associated with the proposed defendants had colluded to distort competition in the market for spot sales of Norwegian farmed Atlantic salmon. Citing the UK Supreme Court’s decision in Evans v Barclays, the Tribunal stressed that it could not place weight on another decision maker’s evaluative conclusions.
The Tribunal accepted that collective proceedings were prima facie appropriate, pointing to the parallel claims brought by supermarket retailers against producers of Atlantic salmon which arise out of very similar alleged conduct. If those actions ultimately establish cartel activity and an overcharge, the Tribunal considered it desirable that the consumer class should be able to claim for the proportion of any overcharge passed on to them in the supply chain.
The Tribunal also indicated, on a provisional basis, that if the PCR’s claim is ultimately certified, the three sets of proceedings would be jointly case managed. The judgment reveals that the costs efficiencies of joint case management would be a key driver of that approach.
In rejecting the PCR’s application, the Tribunal assessed the statutory requirements set out in the Competition Act 1998 and the Competition Appeal Tribunal Rules 2015 to be met in order for the Tribunal to grant a CPO.
At the heart of the Tribunal’s decision not to certify the claim were its concerns regarding the costs and benefits of the proceedings.
The Tribunal drew a contrast between private actions, where claimants will necessarily constantly test the costs and benefits to ensure there are good commercial reasons for continuing the proceedings, and funded class actions, where “striking this balance may be overlooked” (particularly where class representatives are personally insulated from adverse costs).
The Tribunal cast a spotlight on the recent case law considering the distribution of damages and settlement sums, and on the recurring concern that funders and claimant firms may fare better than the class. Drawing on its boundary fares stakeholder entitlement decision (Gutmann), the Tribunal emphasised that the distribution of any damages award should be a factor taken into account as part of the costs-benefits assessment at certification.
In Gutmann, uptake of the settlement sum was very low: only £216,724.91 was ultimately paid out, equating to around 1.2 per cent of the class representative’s nearly £19 million of incurred costs, and about 0.9 per cent of the settlement sum agreed. Several likely reasons for that poor uptake were identified in the stakeholder entitlement decision: the poor publicity of settlement, the novelty of the process, consumer reluctance to provide bank details in a climate of frequent financial scams, and the historical nature of the claims which made it difficult for class members to recall the necessary details required to establish their right to damages.
Against that backdrop, the Tribunal was troubled that the salmon case also involved small per-consumer sums but the distribution method proposed was not materially different (i.e. it required class members to complete an online or paper claim form). In those circumstances there was no evidence that take-up here would be any better than in Gutmann.
Set against what it described as “inexplicably high” legal costs (both incurred and estimated), the Tribunal concluded that the financial benefits of bringing the proceedings to the proposed class had not been sufficiently addressed and that the claim was therefore not suitable to be certified. That was especially so because the PCR’s costs budget did not address the overlap with the retailers’ claims and the resulting cost efficiencies which could be achieved by joint case management.
On that basis, the Tribunal held that the costs and benefits of the PCR’s proposed claim did not favour certification. It contrasted its approach with the earlier certification decision in Gutmann, where the costs-benefits analysis had been treated as finely balanced and did not ultimately derail certification (although the Tribunal did cast doubt on whether the same decision would have been reached today).
Related to its concerns about the costs and benefits of the proceedings generally, the Tribunal also expressed concern with the ability of the PCR to act fairly and adequately in the interests of the class. Those concerns crystallised around what was not said in the PCR’s application. Neither the litigation plan nor the PCR’s evidence in support of the certification application addressed the costs and benefits of the proceedings by reference to the sums of money likely to be returned to class members. Against the background of what the Tribunal considered an “enormous” litigation budget, that omission was significant.
The Tribunal was also troubled by the proposed remuneration for the PCR’s sole director which, it said, vastly exceeded the remuneration ordinarily expected for a person engaged in public service – the benchmark it considered appropriate for a class representative. The Tribunal went so far as to say that the levels of remuneration claimed gave “the appearance of a motivation beyond pursuing the interests of the class” and potentially blurred the line between the interests of the PCR and the class and those of the legal advisers and funders.
Accordingly, the Tribunal found that the authorisation condition had not been met.
The Tribunal’s judgment signals a sharper focus on the costs-benefits analysis at certification, and in particular whether the proposed collective action represents good value for the class as a whole. The message is clear: the opt-out regime must achieve what it was designed to deliver – a realistic and accessible route to collective redress for consumers harmed by anti-competitive conduct – an objective which should not be overshadowed by the significant financial returns available to the lawyers and litigation funders behind the actions. Claims that appear to deliver modest benefits to consumers while generating substantial fees for lawyers and funders are now more likely to face serious headwinds at certification. As part of demonstrating that the claim is suitable to be brought as collective proceedings, it is clear that (unless it is self-evident that an effective distribution method can be devised) the Tribunal will expect prospective class representatives to address, at the certification stage, both the method for distributing any settlement or damages sum and the likely uptake by the class.
However, the decision also reflects a continuation of the trend of the Tribunal giving certain proposed class representatives a second bite at the cherry to improve their claims before rejecting certification definitively. It remains to be seen whether the PCR will be able to reformulate its proposed claim to address the Tribunal’s concerns and pursue its application at the next case management conference, to be listed after 13 May 2026.