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The Competition Appeal Tribunal Rules 2015

Type Statutory-Instrument

Publication 2015-09-07

Last updated 2025-12-12

State In force

Department King's Printer of Acts of Parliament

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(2) A request by a party for the issue of a summons or citation under this rule shall state with reasons—

(a) upon which facts the witness is to be questioned; and

(b) the documents or material required to be produced.

(3) No person may be required to attend in compliance with a summons or citation under this rule unless the person—

(a) has been given at least seven days’ notice of the hearing; and

(b) is offered or paid such sum as would be recoverable by that witness in respect of attendance in proceedings before the Senior Courts of England and Wales, the Court of Session or the Court of Judicature of Northern Ireland, as appropriate according to any determination of the Tribunal under rule 18.

(4) The Tribunal may make the summoning or citation of a witness in accordance with paragraph (1) conditional upon the deposit with the Registrar of a sum determined by the Tribunal as sufficient to cover—

(a) the costs of the summons or citation;

(b) the sum referred to in paragraph (3)(b).

(5) The Tribunal may direct a party to serve on its behalf a summons issued under this rule and pay the sum referred to in paragraph (3)(b).

Failure to comply with directions

57

(1) If any party fails to comply with any direction given in accordance with these Rules, the Tribunal may, if it considers that the justice of the case so requires, order that—

(a) the requirements of the direction be waived;

(b) the failure be remedied;

(d) such party (or its representative) be subject to an order for any costs the Tribunal sees fit.

(2) Before making an order under paragraph (1)(c) or (d), the Tribunal shall give the party (or its representative) the opportunity to make submissions as to why the order should not be made.

FAST-TRACK PROCEDURE

Fast-track procedure

58

(1) The Tribunal may, at any time, either of its own initiative or on the application of a party, make an order that particular proceedings be, or cease to be, subject to the fast-track procedure.

(2) Where the Tribunal has ordered that particular proceedings be subject to the fast-track procedure—

(a) the main substantive hearing is to be fixed to commence as soon as practicable and in any event within six months of an order of the Tribunal stating that the particular proceedings are to be subject to the fast-track procedure; and

(b) the amount of recoverable costs is to be capped at a level to be determined by the Tribunal.

(3) In deciding whether to make particular proceedings subject to the fast-track procedure the Tribunal shall take into account all matters it thinks fit, including—

(a) whether one or more of the parties is an individual or a micro, small or medium-sized enterprise within the meaning of Commission Recommendation No. 361 (EC) of 2003 concerning the definition of micro, small and medium-sized enterprises[^f00029];

(b) whether the time estimate for the main substantive hearing is three days or less;

(d) whether any additional claims have been or will be made in accordance with rule 39;

(e) the number of witnesses involved (including expert witnesses, if any);

(f) the scale and nature of the documentary evidence involved;

(g) whether any disclosure is required and, if so, the likely extent of such disclosure; and

(h) the nature of the remedy being sought and, in respect of any claim for damages, the amount of any damages claimed.

SECURITY FOR COSTS

Security for costs

59

(1) A defendant to a claim may seek security for its costs of the proceedings.

(2) A request for security for costs shall be supported by written evidence.

(3) Where the Tribunal makes an order for security for costs, it shall—

(a) determine the amount of security; and

(b) direct—

(i) the manner in which, and

(ii) the time within which,

the security must be given.

(4) The Tribunal may make an order for security for costs under this rule if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order, and—

(a) one or more of the conditions in paragraph (5) or, as the case may be, paragraph (6) applies; or

(b) an enactment permits the Tribunal to require security for costs.

(5) Where a defendant seeks security for costs against the claimant, the conditions are that—

(a) the claimant is—

(i) resident out of the jurisdiction; but

(ii) not resident in a Brussels Contracting State, a State bound by the Lugano Convention or a Regulation State, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982[^f00030];

(b) the claimant is a company or other body (whether incorporated in or outside the United Kingdom) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;

(c) the claimant has changed its address since the claim was commenced with a view to evading the consequences of the litigation;

(d) the claimant failed to give its address in the claim form, or gave an incorrect address in that form;

(e) the claimant is acting as a nominal claimant, other than under section 47B of the 1998 Act (collective proceedings)[^f00031], and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;

(f) the claimant has been authorised to act as the class representative in collective proceedings under rule 78 and there is reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so;

(g) the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it.

(6) Where a defendant seeks security for costs against someone other than the claimant, the conditions are that the person—

(a) has assigned the right to the claim to the claimant with a view to avoiding the possibility of a costs order being made against the person; or

(b) has contributed or agreed to contribute to the claimant’s costs in return for a share of any money or property which the claimant may recover in the proceedings,

and is a person against whom a costs order may be made.

DISCLOSURE

Disclosure by parties to the proceedings

60

(1) In this rule, and in rules 61 to 65—

(a) a party discloses a document by stating that the document exists or has existed;

(b) a “disclosure report” means a report verified by a statement of truth, which—

(i) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(ii) describes where and with whom those documents are or may be located;

(iii) in the case of electronic documents, describes how those documents are stored;

(iv) estimates the broad range of costs that could be involved in giving disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(v) states which directions are to be sought regarding disclosure;

(c) an “Electronic Documents Questionnaire” means a questionnaire in the form of the questionnaire in the Schedule to Practice Direction 31B of the CPR.

(2) Subject to paragraph (3) and unless the Tribunal otherwise thinks fit—

(a) at the first case management conference, the Tribunal shall decide whether and when the disclosure report and a completed Electronic Documents Questionnaire should be filed; and

(b) at a subsequent case management conference, the Tribunal shall decide, having regard to the governing principles and the need to limit disclosure to that which is necessary to deal with the case justly, what orders to make in relation to disclosure.

(3) The Tribunal may at any point give directions as to how disclosure is to be given, and in particular—

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(d) what is required in relation to documents that once existed but no longer exist; and

(e) whether disclosure is to take place in stages.

(4) A party’s duty to disclose documents is limited to documents which are or have been in its control; and for this purpose, a party has or has had a document in its control if—

(a) the document is or was in its physical possession;

(b) it has or has had a right to possession of the document; or

(5) A party need not disclose more than one copy of a document, and for that purpose a copy of a document that contains a modification, obliteration or other marking or feature is to be treated as a separate document.

(6) Any duty of disclosure continues until the proceedings are concluded.

(7) If documents to which such a duty extends come to a party’s notice at any time during the proceedings, it shall immediately notify every other party.

Documents referred to in statements of case etc.

61

A party may request disclosure of any document mentioned in—

(a) a claim form, defence, or reply to a defence;

(b) a witness statement or affidavit; or

(c) an expert report, except that any instructions referred to in an expert’s report shall not (unless the party serving the report consents) be disclosed without an order of the Tribunal.

Disclosure before proceedings start

62

(1) This rule applies where an application is made to the Tribunal for disclosure before proceedings have started.

(2) The application shall be supported by evidence.

(3) The Tribunal may make an order under this rule only where—

(a) the respondent, or an associated body corporate (as defined in section 256 of the Companies Act 2006[^f00032]), is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs; and

(d) the Tribunal would, if proceedings had started, have ordered disclosure under rule 60.

(4) An order under this rule shall—

(a) specify the documents or the classes of documents which the respondent shall disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in its control; or

(ii) in respect of which it claims a right or duty to withhold disclosure.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in its control; and

(b) specify the time and place for disclosure.

Orders for disclosure against a person not a party

63

(1) This rule applies where an application is made to the Tribunal by a party for disclosure by a person who is not a party to the proceedings.

(2) The application shall be supported by evidence.

(3) The Tribunal may make an order under this rule only where—

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule shall—

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in its control; or

(ii) in respect of which it claims a right or duty to withhold inspection.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in its control; and

(b) specify the time and place for disclosure.

Claim to withhold inspection or disclosure of a document

64

(1) A person may apply, without notice, for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the public interest.

(2) Unless the Tribunal orders otherwise, an order of the Tribunal under paragraph (1)—

(a) shall not be served on any other person; and

(b) shall not be open to inspection by any person.

(3) A person who wishes to claim a right or a duty to withhold inspection of a document, or part of a document, shall state in writing—

(a) that that person is claiming such a right or duty; and

(b) the grounds on which that person claims that right or duty.

(4) The statement referred to in paragraph (3) shall be made—

(a) in the list in which the document is disclosed; or

(b) if there is no list, to the person wishing to inspect the document.

(5) A party may apply to the Tribunal to decide whether a claim made under paragraph (3) should be upheld.

(6) For the purpose of deciding an application under paragraph (1) or paragraph (5) the Tribunal may—

(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the Tribunal;

(b) invite any person, whether or not a party, to make representations; and

(7) An application under paragraph (1) or paragraph (5) shall be supported by evidence.

(8) This rule does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.

Restriction on use of a privileged document inspection of which has been inadvertently allowed

65

Where a party inadvertently discloses a privileged document, the party who has seen the document may use it or its contents only with the permission of the Tribunal.

INTERIM PAYMENTS

Interim payments on claims

66

(1) An interim payment is an order for payment by the defendant (in one sum or in instalments) on account of any damages or other sum of money (except costs) which the Tribunal may hold the defendant liable to pay.

(2) The claimant may not apply for an order for an interim payment before the end of the period for filing a defence by the defendant against whom the claim is made.

(3) The claimant may make more than one application for an order for an interim payment.

(4) The Tribunal may make an interim payment order if—

(a) the defendant against whom the order is sought has admitted liability to pay damages to the claimant;

(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed; or

(c) it is satisfied that, if the claim were to be heard, the claimant would obtain judgment for a substantial amount of money (other than costs) against that defendant.

(5) The Tribunal shall not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

(6) An application for an interim payment shall be supported by evidence and include—

(a) the grounds on which an interim payment is sought; and

(b) any directions necessary in the opinion of the claimant for the determination of the application.

(7) On receiving an application for an interim payment the Registrar shall send a copy to all the other parties to the proceedings and shall inform them of the date by which they may submit written or oral observations to the Tribunal.

INJUNCTIONS

Injunctions generally

67

(1) This rule and rules 68 to 70 do not apply to proceedings in Scotland.

(2) The Tribunal may by order (whether interim or final) grant an injunction in all cases in which it appears to the Tribunal to be just and convenient to do so.

(3) Any such order may be made either unconditionally or on such terms and conditions as the Tribunal thinks just.

Interim injunctions

68

(1) An order for an interim injunction may be made at any time, including—

(a) before proceedings are started; and

(b) after judgment has been given.

(2) The Tribunal may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.

(3) The Tribunal may grant an interim injunction before proceedings are started only if—

(a) the matter is urgent; or

(b) it is otherwise necessary to do so in the interests of justice.

(4) Where it grants an interim remedy before proceedings are started, the Tribunal may give directions requiring a claim to be commenced.

(5) In proceedings subject to the fast-track procedure in accordance with rule 58, the Tribunal may grant an interim injunction—

(a) without requiring the applicant to provide an undertaking as to damages; or

(b) subject to a cap on the amount of the undertaking as to damages.

How to apply for an interim remedy

69

(1) The Tribunal may grant an interim remedy on an application made without notice if it appears to the Tribunal that there are good reasons for not giving notice.

(2) An application for an interim remedy shall be supported by evidence, unless the Tribunal orders otherwise.

(3) The evidence in support of the application shall—

(a) include all material information regarding the applicant’s ability to pay under any undertaking as to damages that the Tribunal may require to be given; and

(b) if the application is made without notice, state the reasons why notice has not been given.

Enforcement

70

(1) After the granting of an injunction by the Tribunal, if a party contends that the party subject to the injunction has failed to comply, the party so contending may apply to the Tribunal for certification of the matter to the High Court in accordance with paragraph 1A of Schedule 4 to the 2002 Act (Tribunal: procedure)[^f00033].

(2) Any evidence relied on in an application made under paragraph (1) shall be served on all other parties to the proceedings.

(3) The Tribunal may, after giving the parties an opportunity to be heard, make any directions as it thinks fit for determining whether to certify the matter to the High Court.

TRANSFERS

Transfer of claims from the Tribunal

71

The Tribunal may, at any stage of the proceedings, on the request of a party or of its own initiative, and after considering any observations of the parties, direct that all or part of a claim made in proceedings brought under section 47A of the 1998 Act (proceedings before the Tribunal: claims for damages etc.)[^f00034] be transferred to—

(a) the High Court or the county court in England and Wales or Northern Ireland; or

(b) the Court of Session or the Sheriff Court in Scotland.

Transfer of claims to the Tribunal

72

(1) This rule applies where any court has ordered the transfer to the Tribunal of all or part of any proceedings.

(2) The person bringing the claim shall within seven days of the order of the court transferring the claim or such other period directed by that court, file—

(a) a certified copy of the order of the court transferring the claim to the Tribunal;

(b) any pleadings and documents in support of the claim filed with the court in which the claim was begun; and

(3) As soon as practicable after receipt of the documents referred to in paragraph (2) a case management conference shall be held in accordance with rule 54.

PART 5 — COLLECTIVE PROCEEDINGS AND COLLECTIVE SETTLEMENTS

Scope and interpretation

73

(1) The rules in this Part apply to collective proceedings and collective settlement.

(2) In this Part—

“aggregate award of damages” means an award of damages made by the Tribunal in collective proceedings without undertaking an assessment of the amount of damages recoverable in respect of each represented person;

“class member” means a person falling within the class described in the collective proceedings order, or a collective settlement order, as the case may be;

“collective proceedings order” means an order made by the Tribunal authorising the continuance of collective proceedings;

“collective settlement approval order” means an order of the Tribunal approving a proposed collective settlement;

“common issues” means the same, similar or related issues of fact or law;

“domicile date” means the date specified in a collective proceedings order or collective settlement order for the purposes of determining whether a person is domiciled in the United Kingdom;

“opt-in collective proceedings” has the meaning given in section 47B(10) of the 1998 Act[^f00035];

“opt-out collective proceedings” has the meaning given in section 47B(11) of the 1998 Act; “proposed class representative” means a person who proposes to be a class representative by applying to the Tribunal to be a class representative; and

“represented person” means a class member who, in accordance with rule 82— has opted in to opt-in collective proceedings; was domiciled in the United Kingdom on the domicile date and has not opted out of opt-out collective proceedings; or has opted in to opt-out collective proceedings.

General

74

(1) Part 4 of these Rules applies to collective proceedings in accordance with this rule—

(2) References in Part 4 to “claim form” and “claimant” are to be read respectively as “collective proceedings claim form” and “class representative”.

(3) The following rules do not apply to collective proceedings—

(a) rule 30 (manner of commencing proceedings under section 47A of the 1998 Act);

(b) rule 33 (acknowledgment, service and notification);

(d) rule 58 (fast-track procedure);

(e) rule 71 (transfer of claims from the Tribunal);

(f) rule 72 (transfer of claims to the Tribunal).

(4) The following rules apply to collective proceedings with the following modifications—

(a) rule 35 (defence to a claim): the time limit for the filing of the defence in rule 35(1) does not apply;

(b) rule 36 (reply to defence): the time limit for the filing of the reply in rule 36(1) does not apply;

(c) rule 42 (default judgment): default judgment may only be given in collective proceedings after the Tribunal has made a collective proceedings order in accordance with rule 80;

(d) rule 54 (case management conference): references to the first case management conference are to be read as referring to the first case management conference after the Tribunal has made a collective proceedings order in accordance with rule 80;

(e) rule 60 (disclosure by parties to the proceedings): references to the first case management conference are to be read as referring to the first case management conference after the Tribunal has made a collective proceedings order in accordance with rule 80;

(5) Rule 44 (withdrawal) applies to collective proceedings, in accordance with rules 86 (individual settlement by the class representative) and 87 (applications for withdrawal by the class representative);

(6) A collective proceedings order and a collective settlement order may be limited to only some parts or issues in the claims to which it relates.

COLLECTIVE PROCEEDINGS

Manner of commencing proceedings under section 47B of the 1998 Act

75

(1) An application to commence collective proceedings shall be made by the proposed class representative filing a collective proceedings claim form.

(2) The collective proceedings claim form shall state—

(a) the full name and address of the proposed class representative;

(b) the full name and address of the proposed class representative’s legal representative;

(d) the name and address of each defendant to the proceedings;

(e) that the proposed class representative is making an application for a collective proceedings order;

(f) whether the application relates to proposed opt-in collective proceedings or opt-out collective proceedings;

(g) whether the parties have used an alternative dispute resolution procedure; and

(h) that the proposed class representative believes that the claims which it is sought to combine in the collective proceedings have a real prospect of success.

(3) The collective proceedings claim form shall contain—

(a) description of the proposed class;

(b) a description of any possible sub-class and how it is proposed that their interests may be represented;

(d) a summary of the basis on which the proposed class representative seeks to be authorised to act in that capacity in accordance with rule 78;

(e) a summary of the basis on which it is contended that the criteria for certification and approval in rule 79 are satisfied;

(f) a statement as to whether the claims are in respect of an infringement decision, and if so whether that decision has become final within the meaning of section 58A of the 1998 Act (infringement decisions)[^f00036];

(g) a concise statement of the relevant facts, identifying, where applicable, any relevant findings in an infringement decision;

(h) a concise statement of any contentions of law which are relied on;

(i) the relief sought in the proceedings including—

(i) where applicable, an estimate of the amount claimed in damages, including whether an aggregate award of damages is sought, supported by an explanation of how that amount has been calculated;

(ii) details of any other claim for a sum of money;

(iii) in proceedings in England and Wales or Northern Ireland, whether the proposed class representative is making an application for an injunction;

(j) observations on the question in which part of the United Kingdom the proceedings are to be treated as taking place under rule 18; and

such other matters as may be specified by practice direction.

(4) The contents of the collective proceedings claim form shall be verified by a statement of truth signed and dated by the proposed class representative or on its behalf by its duly authorised officer or legal representative.

(5) There shall be annexed to the collective proceedings claim form—

(a) a copy of any infringement decision referred to in paragraph (4)(f) and any other document referred to in the collective proceedings claim form;

(b) a draft collective proceedings order; and

(6) Unless the Tribunal otherwise directs, the signed original of the collective proceedings claim form shall be accompanied by five copies of the form and its annexes certified by the proposed class representative or its legal representative as conforming to the originals.

(7) When filing the collective proceedings claim form, the proposed class representative shall also indicate the method by which it proposes to effect service on the defendant and provide any other information with regard to service of the collective proceedings claim form as may be specified by practice direction.

Response to a collective proceedings claim form

76

(1) On receiving a collective proceedings claim form, the Registrar shall send an acknowledgment of receipt to the proposed class representative and, except where paragraph (2) applies, direct that the proposed class representative serve the collective proceedings claim form on the defendant.

(2) Where service of the collective proceedings claim form outside the jurisdiction requires the permission of the Tribunal in accordance with rule 31, the collective proceedings claim form may be served on the defendant only if permission is granted.

(3) The Registrar’s direction for service under paragraph (1) may specify any matter the Registrar may consider appropriate with regard to the service of the collective proceedings claim form, including—

(a) the time within and the method by which service of the collective proceedings claim form is to be effected;

(b) the documents that are to accompany the collective proceedings claim form including the acknowledgment of service in the form required by the Tribunal;

(c) the information to be provided to the Registrar by the proposed class representative concerning the date of service and the calculation of the time limit for acknowledging service; and

(d) the provision of any other information that may be required by the Registrar (whether by way of certificate of service, verified by a statement of truth, witness statement or otherwise) regarding the service of the collective proceedings claim form and;

(e) the time within which any information required by the Registrar is to be provided.

(4) Where the collective proceedings claim form is served on a defendant domiciled in the United Kingdom, the defendant shall within seven days of receipt of the copy of the collective proceedings claim form file an acknowledgment of service of the claim in the form provided by the Registrar.

(5) Where the collective proceedings claim form is served on a foreign defendant, the period for acknowledging service set out in paragraph (4) shall be varied so as to accord with the period applicable under Part 6 of the CPR in relation to proceedings in England and Wales or the equivalent provisions in the equivalent procedural rules for Scotland or Northern Ireland in relation to proceedings taking place in Scotland or Northern Ireland respectively.

(6) The proposed class representative shall send a copy of the collective proceedings claim form to the CMA at the same time as it is served on the other parties to the claim.

(7) The Registrar shall as soon as practicable notify the proposed class representative of the receipt of an acknowledgment of service from the defendant.

(8) The Registrar shall publish a summary of the collective proceedings claim form on the Tribunal website and in any other manner the President may direct.

(9) As soon as practicable, the Tribunal shall hold a case management conference to give directions in relation to the application for a collective proceedings order.

(10) The Tribunal may give directions—

(a) as regards any question concerning service out of the jurisdiction;

(b) as to the time by which the defendant shall respond to the application for a collective proceedings order;

(c) as to the time by which any person with an interest (including any class member) may object to the application for a collective proceedings order or the authorisation of the proposed class representative;

(d) regarding the hearing of the application; or

(e) as to a stay of proceedings while the parties attempt to compromise the proceedings by alternative dispute resolution or other means.

(11) Subject to any directions of the Tribunal, the defendant does not need to file a defence before the hearing of the application for a collective proceedings order.

(12) A defendant who opposes an application for a collective proceedings order does not, by doing so, lose any right that the defendant may have to dispute the Tribunal’s jurisdiction.

Determination of the application for a collective proceedings order

77

(1) The Tribunal may make a collective proceedings order, after hearing the parties, only—

(a) if it considers that the proposed class representative is a person who, if the order were made, the Tribunal could authorise to act as the class representative in those proceedings in accordance with rule 78; and

(b) in respect of claims or specified parts of claims which are eligible for inclusion in collective proceedings in accordance with rule 79.

(2) If the Tribunal makes a collective proceedings order it may attach such conditions to the order or give such directions as it thinks fit, including—

(a) directions for filing and service of the order, pleadings and any other document in relation to the collective proceedings; and

(b) directions regarding any class member who is a child or person who lacks capacity.

Authorisation of the class representative

78

(1) The Tribunal may authorise an applicant to act as the class representative—

(a) whether or not the applicant is a class member, but

(b) only if the Tribunal considers that it is just and reasonable for the applicant to act as a class representative in the collective proceedings.

(2) In determining whether it is just and reasonable for the applicant to act as the class representative, the Tribunal shall consider whether that person—

(a) would fairly and adequately act in the interests of the class members;

(b) does not have, in relation to the common issues for the class members, a material interest that is in conflict with the interests of class members;

(c) if there is more than one applicant seeking approval to act as the class representative in respect of the same claims, would be the most suitable;

(d) will be able to pay the defendant’s recoverable costs if ordered to do so; and

(e) where an interim injunction is sought, will be able to satisfy any undertaking as to damages required by the Tribunal.

(3) In determining whether the proposed class representative would act fairly and adequately in the interests of the class members for the purposes of paragraph (2)(a), the Tribunal shall take into account all the circumstances, including—

(a) whether the proposed class representative is a member of the class, and if so, its suitability to manage the proceedings;

(b) if the proposed class representative is not a member of the class, whether it is a pre-existing body and the nature and functions of that body;

(c) whether the proposed class representative has prepared a plan for the collective proceedings that satisfactorily includes—

(i) a method for bringing the proceedings on behalf of represented persons and for notifying represented persons of the progress of the proceedings; and

(ii) a procedure for governance and consultation which takes into account the size and nature of the class; and

(iii) any estimate of and details of arrangements as to costs, fees or disbursements which the Tribunal orders that the proposed class representative shall provide.

(4) If the represented persons include a sub-class of persons whose claims raise common issues that are not shared by all the represented persons, the Tribunal may authorise a person who satisfies the criteria for approval in paragraph (1) to act as the class representative for that sub-class.

Certification of the claims as eligible for inclusion in collective proceedings

79

(1) The Tribunal may certify claims as eligible for inclusion in collective proceedings where, having regard to all the circumstances, it is satisfied by the proposed class representative that the claims sought to be included in the collective proceedings—

(a) are brought on behalf of an identifiable class of persons;

(b) raise common issues; and

(2) In determining whether the claims are suitable to be brought in collective proceedings for the purposes of paragraph (1)(c), the Tribunal shall take into account all matters it thinks fit, including—

(a) whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues;

(b) the costs and the benefits of continuing the collective proceedings;

(c) whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class;

(d) the size and the nature of the class;

(e) whether it is possible to determine in respect of any person whether that person is or is not a member of the class;

(f) whether the claims are suitable for an aggregate award of damages; and

(g) the availability of alternative dispute resolution and any other means of resolving the dispute, including the availability of redress through voluntary schemes whether approved by the CMA under section 49C of the 1998 Act[^f00037] or otherwise.

(3) In determining whether collective proceedings should be opt-in or opt-out proceedings, the Tribunal may take into account all matters it thinks fit, including the following matters additional to those set out in paragraph (2)—

(a) the strength of the claims; and

(b) whether it is practicable for the proceedings to be brought as opt-in collective proceedings, having regard to all the circumstances, including the estimated amount of damages that individual class members may recover.

(4) At the hearing of the application for a collective proceedings order, the Tribunal may hear any application by the defendant—

(a) under rule 41(1), to strike out in whole or part any or all of the claims sought to be included in the collective proceedings; or

(b) under rule 43(1), for summary judgment.

(5) Any member of the proposed class may apply to make submissions either in writing or orally at the hearing of the application for a collective proceedings order.

The collective proceedings order

80

(1) A collective proceedings order shall authorise the class representative to act as such in continuing the collective proceedings and shall—

(a) state the name and address for service of the class representative or, where there are sub-classes, representatives;

(b) state the name of each defendant;

(d) describe or otherwise identify the claims certified for inclusion in the collective proceedings;

(e) state the remedy sought;

(f) state whether the collective proceedings are opt-in or opt-out collective proceedings;

(g) specify the domicile date;

(h) specify the time and the manner by which—

(i) in the case of opt-in collective proceedings, a class member may opt in;

(ii) in the case of opt-out collective proceedings, a class member who is domiciled in the United Kingdom on the domicile date may opt out; and

(iii) in the case of opt-out collective proceedings, a class member who is not domiciled in the United Kingdom on the domicile date may opt in;

(i) order the publication of a notice to class members in accordance with rule 81; and

(j) specify the part of the United Kingdom in which the collective proceedings are to be treated as taking place.

(2) In describing or otherwise identifying the class for the purposes of paragraph (1)(c), it is not necessary for the order to name or specify the number of the class members.

Notice of the collective proceedings order

81

(1) The class representative shall give notice of the collective proceedings order to class members in a form and manner approved by the Tribunal.

(2) The notice referred to in paragraph (1) shall—

(a) incorporate or have annexed to it the collective proceedings order;

(b) identify each defendant;

(d) include a statement explaining that any judgment on the common issues for the class members or any sub-class will bind represented persons in the class, or those within the sub-class;

(e) draw attention to the provisions of the order setting out what a class member is required to do and by what date so as to opt into or opt out of the collective proceedings and

(f) give such other information as the Tribunal directs.

Opting in and opting out of collective proceedings

82

(1) A class member may on or before the time and in the manner specified in the collective proceedings order—

(a) in the case of opt-in collective proceedings, opt into the collective proceedings; or

(b) in the case of opt-out collective proceedings, either—

(i) opt out of the collective proceedings; or

(ii) if not domiciled in the United Kingdom at the domicile date, opt into the collective proceedings.

(2) A class member who does not opt in or opt out in accordance with paragraph (1) may not do so without the permission of the Tribunal.

(3) In considering whether to grant permission under paragraph (2), the Tribunal shall consider all of the circumstances, including in particular—

(a) whether the delay was caused by the fault of that class member; and

(b) whether the defendant would suffer substantial prejudice if permission were granted.

(4) A class member who has already brought a claim that raises one or more of the common issues set out in the collective proceedings order may not be a represented person unless the class member:

(a) discontinues the claim, or;

(b) for claims brought in England, Wales or Northern Ireland, applies to stay that claim, or;

(c) for claims brought in Scotland, applies to sist that claim before the time specified in the collective proceedings order under rule 80(1)(h) to opt into or out of the collective proceedings.

Class records

83

(1) After a collective proceedings order has been made, the class representative shall establish a register on which it shall record the names of those class members who, in accordance with rule 82, opt in to or opt out of the collective proceedings.

(2) The class representative shall, on request, make such register available for inspection by the Tribunal and any defendant and by such other person as the Tribunal may direct.

Scope of the collective proceedings

84

A class representative may not in collective proceedings bring different claims or bring claims against different defendants to those specified in the collective proceedings order.

Stay of proceedings and variation or revocation of the collective proceedings order

85

(1) The Tribunal may at any time, either of its own initiative or on the application of the class representative, a represented person or a defendant, make an order for the variation or revocation of the collective proceedings order, or for the stay or sist of collective proceedings.

(2) In deciding whether to vary or revoke a collective proceedings order, the Tribunal shall take account of all the relevant circumstances, including in particular—

(a) whether the criteria for certification of claims set out in rule 79 still apply or apply in the same way as when the order was made; and

(b) whether the class representative continues to satisfy the criteria for authorisation set out in rule 78 and if not, whether a suitable alternative class representative can be authorised;

(c) whether the Tribunal has granted the class representative permission to withdraw in accordance with rule 87 and it will not be substituted.

(3) If the Tribunal makes an order under paragraph (1), the order may also make further provision including—

(a) that the proceedings should be discontinued in whole or in part or continue between different parties and, for that purpose, the Tribunal may—

(i) order the addition, removal or substitution of parties; or

(ii) order the amendment of the collective proceedings claim form;

(b) that there be substituted as the class representative another person who satisfies the criteria for approval in rule 78;

(4) If the Tribunal varies the collective proceedings order so as to alter the description or identification of class members, it may also make any other orders that it considers appropriate, including an order relating to the specified time for the purposes of rules 80 and 82.

Individual settlement by the class representative in opt-in proceedings

86

If the class representative in opt-in collective proceedings is a member of the class and settles in whole or part its personal claim included within the collective proceedings, it shall promptly give notice of that fact—

(a) to all represented persons; and

(b) to the Tribunal.

Applications for withdrawal by the class representative

87

(1) A class representative may only withdraw from acting in that capacity in the collective proceedings if the Tribunal gives permission for the withdrawal.

(2) The Tribunal may only give permission for the withdrawal under paragraph (1)—

(a) if it is satisfied that the class representative has given notice of the application to withdraw to represented persons in a form and manner approved by the Tribunal; and

(b) on conditions as to costs, if any, that the Tribunal considers just.

(3) If the Tribunal gives permission for the class representative to withdraw from acting in that capacity and no substitute class representative is approved, the Tribunal may give directions for the future conduct of the proceedings which may include provision that the proceedings should continue as one or more proceedings between different parties or be discontinued.

Case management of the collective proceedings

88

(1) The Tribunal may, at any time, give any directions it thinks appropriate for the case management of the collective proceedings.

(2) Without limitation to the generality of paragraph (1), such directions may order that—

(a) the common issues for the class be determined together;

(b) the common issues for a sub-class be determined together;

(c) issues that are relevant only to certain represented persons (“individual issues”) be determined in further hearings either separately or at the same time;

(d) the class representative give notice in such manner as the Tribunal directs to represented persons of any step taken by the class representative.

(3) If the Tribunal directs that the participation of any represented persons is necessary in order to determine individual issues, the class representative shall give notice of the further hearings to those persons in a form and manner approved by the Tribunal.

Disclosure

89

(1) In addition to the Tribunal’s general powers under these Rules to order disclosure, the Tribunal may order, on any terms it thinks fit, disclosure to be given—

(a) by any party to the collective proceedings to any other party;

(b) by the class representative to any or all represented persons; and

(c) by any represented person to any other represented person (including a person within a different sub-class), the class representative or the defendant.

Notices

90

If a class member or represented person does not receive, or fails to respond to, a notice, this does not affect a step taken, order made or judgment given, in the collective proceedings, unless the Tribunal orders otherwise.

Judgments and orders

91

(1) A judgment or order of the Tribunal made in collective proceedings may specify the sub-class of represented persons or individual represented persons to whom it shall not apply.

(2) The class representative shall give notice of any judgment or order to all represented persons in a form and manner approved by the Tribunal.

(3) Unless ordered otherwise by the Tribunal, the notice referred to in paragraph (2) shall—

(a) incorporate or have annexed to it the judgment or order;

(b) if it relates to a judgment on common issues in favour of represented persons, include a statement in easily understood language—

(i) explaining that represented persons may be entitled to individual remedies;

(ii) stating the steps that shall be taken to claim that remedy; and

(iii) stating the consequences of failing to take those steps;

(i) informing them that an appeal may be brought only by the class representative; and

(ii) stating the date by which the class representative would have to serve a notice of appeal or application for permission to appeal;

(d) if the Tribunal has specified under paragraph (1) that some represented persons are not bound by the judgment or order, a statement to that effect; and

(e) give such other information as the Tribunal directs.

Assessment of damages

92

(1) Where the Tribunal makes an aggregate award of damages, it shall give directions for assessment of the amount that may be claimed by individual represented persons out of that award.

(2) Directions given may include—

(a) a method or formula by which such amounts are to be quantified;

(b) provision for making an interim payment before the final amount which a represented person may receive is determined;

(c) the appointment of an independent third party to determine a claim or dispute by any represented person regarding the quantification of the amount which that person will receive, and provision for payment of the costs of that independent third party; and

(d) a requirement that the apportionment of the aggregate award as between represented persons is approved by the Tribunal.

(3) The class representative shall give notice to represented persons, in such manner as the Tribunal directs, of any hearing to determine what directions should be given in accordance with paragraph (1), and any represented person may apply to the Tribunal to make submissions either in writing or orally at that hearing.

Distribution of award

93

(1) Where the Tribunal makes an award of damages in opt-out collective proceedings, it shall make an order providing for the damages to be paid on behalf of the represented persons to—

(a) the class representative; or

(b) such person other than a represented person as the Tribunal thinks fit.

(2) Where the Tribunal makes an award of damages in opt-in collective proceedings, it may make an order as described in paragraph (1).

(3) An order made in collective proceedings in accordance with paragraphs (1) and (2), may specify—

(a) the date by which represented persons shall claim their entitlement to a share of that aggregate award;

(b) the date by which the class representative or person specified in accordance with paragraph (1)(b) shall notify the Tribunal of any undistributed damages which have not been claimed;

(4) Where the Tribunal is notified that there are undistributed damages in accordance with paragraph (3)(b), it may make an order directing that all or part of any undistributed damages is paid to the class representative in respect of all or part of any costs, fees or disbursements incurred by the class representative in connection with the collective proceedings.

(5) In exercising its discretion under paragraph (4), the Tribunal may itself determine the amounts to be paid in respect of costs, fees or disbursements or may direct that any such amounts be determined by a costs judge of the High Court or a taxing officer of the Supreme Court of Northern Ireland or the Auditor of the Court of Session.

(6) Subject to any order made under paragraph (4), the Tribunal shall order that all or part of any undistributed damages is paid to the charity designated in accordance with section 47C(5) of the 1998 Act[^f00038] and a copy of that order shall be sent to that charity.

COLLECTIVE SETTLEMENTS

Collective settlement where a collective proceedings order has been made: opt-out collective proceedings

94

(1) Where a collective proceedings order has been made and the Tribunal has specified that the proceedings are opt-out collective proceedings, the claims which are the subject of the collective proceedings, may not be settled other than by a collective settlement approval order issued in accordance with this rule.

(2) Any offer to settle by a defendant in the collective proceedings shall be made to the class representative.

(3) An application for a collective settlement approval order shall be made to the Tribunal by—

(a) the class representative; and

(b) the defendant in the collective proceedings, or if there is more than one defendant, such of them as wish to be bound by the proposed collective settlement.

(4) The application referred to in paragraph (3) shall—

(a) provide details of the claims to be settled by the proposed collective settlement;

(b) set out the terms of the proposed collective settlement, including any related provisions as to the payment of costs, fees and disbursements;

(c) contain a statement that the applicants believe that the terms of the proposed settlement are just and reasonable, supported by evidence which may include any report by an independent expert or any opinion of the applicants’ legal representatives as to the merits of the collective settlement;

(d) specify how any sums received under the collective settlement are to be paid and distributed;

(e) have annexed to it a draft collective settlement approval order; and

(f) set out the form and manner by which the class representative proposes to give notice of the application to—

(i) represented persons, in a case where it is expected that paragraph (11) will apply; or

(ii) class members, in a case where it is expected that paragraph (12) will apply.

(5) Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement approval order shall be accompanied by five copies of the application and its annexes certified by the class representative or its legal representative as conforming to the original.

(6) On receiving an application for a collective settlement approval order, the Tribunal may give any directions it thinks fit, including—

(a) for the confidential treatment of any part of an application for a collective settlement approval order;

(b) for the giving of or dispensing with the notice referred to in paragraph (4)(f);

(d) for the hearing of the application.

(7) Any represented person or, in a case where paragraph (12) applies, any class member may apply to make submissions either in writing or orally at the hearing of the application for a collective settlement approval order.

(8) At the hearing of the application, the Tribunal may make a collective settlement approval order where it is satisfied that the terms of the collective settlement are just and reasonable.

(9) In determining whether the terms are just and reasonable, the Tribunal shall take account of all relevant circumstances, including—

(a) the amount and terms of the settlement, including any related provisions as to the payment of costs, fees and disbursements;

(b) the number or estimated number of persons likely to be entitled to a share of the settlement;

(c) the likelihood of judgment being obtained in the collective proceedings for an amount significantly in excess of the amount of the settlement;

(d) the likely duration and cost of the collective proceedings if they proceeded to trial;

(e) any opinion by an independent expert and any legal representative of the applicants;

(f) the views of any represented person in a case to which paragraph (11) applies, or of any class member in a case to which paragraph (12) applies; and

(g) the provisions regarding the disposition of any unclaimed balance of the settlement, but a provision that any unclaimed balance of the settlement amount reverts to the defendants shall not of itself be considered unreasonable.

(10) A collective settlement approval order may specify the time and manner by which—

(a) a represented person or class member, as the case may be, who is domiciled in the United Kingdom on the domicile date may opt out of the collective settlement; and

(b) a represented person or class member, as the case may be, who is not domiciled in the United Kingdom on the domicile date may opt in to the collective settlement.

(11) Where the Tribunal approves the collective settlement after the expiry of the period specified in the collective proceedings order in accordance with rule 80(1)(h)(ii) or (iii) within which persons may opt out or (if not domiciled in the United Kingdom) opt in to the collective proceedings, the collective settlement approval order binds all represented persons except—

(a) a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and

(b) a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.

(12) Where the Tribunal approves the collective settlement before the expiry of the period referred to in paragraph (11), the collective settlement approval order binds all class members except—

(a) a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and

(b) a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.

(13) If the Tribunal approves the proposed collective settlement, the class representative shall give notice of the terms of the settlement and its approval, in a form and manner approved by the Tribunal, to the represented persons in a case to which paragraph (11) applies, or to the class members in a case to which paragraph (12) applies, and to any other persons as the Tribunal may direct.

(14) If one or more of the represented persons or class members are to be omitted from the collective settlement, the Tribunal may permit the proceedings to continue as one or more claims between different parties and for that purpose—

(a) order the addition, removal or substitution of parties;

(b) order the amendment of the collective proceedings claim form; or

(15) If the Tribunal does not approve the proposed collective settlement, the application for a collective settlement approval order and the terms of the proposed collective settlement may not be relied on at the trial of the collective proceedings, unless all the parties to that application agree in writing.

Collective settlements where a collective proceedings order has been made: opt-in proceedings

95

Where a collective proceedings order has been made and the Tribunal has specified that the proceedings are opt-in collective proceedings, the class representative may not without the permission of the Tribunal settle those proceedings before the expiry of the time specified in the collective proceedings order as the time by which a class member may without the permission of the Tribunal opt in to those proceedings.

Collective settlements where a collective proceedings order has not been made

96

(1) An application for a collective settlement order shall be made to the Tribunal by—

(a) a person who proposes to be the settlement representative in relation to the collective settlement; and

(b) the person who, if collective proceedings were brought in respect of the claims would be a defendant in those proceedings (or where more than one person would be a defendant in those proceedings, such of those persons as wish to be bound by the proposed collective settlement).

(2) The application for a collective settlement order referred to in paragraph (1) shall—

(a) identify the proposed settlement representative;

(b) provide a summary of the basis on which the proposed settlement representative seeks to be authorised to act in that capacity in accordance with paragraphs (9) to (11);

(c) identify the person or persons who would be a defendant or defendants in collective proceedings and who it is proposed will be parties to the collective settlement;

(d) provide a description of the proposed settlement class;

(e) provide an estimate of the number of class members and the basis for that estimate;

(f) provide details of the claims to be settled by the proposed collective settlement;

(g) provide a summary of the basis on which the claims, if they had been made in collective proceedings, would satisfy the requirements of rule 79; and

(h) annex—

(i) a draft collective settlement order;

(ii) a draft of the summary referred to in paragraph (5); and

(iii) a draft of the notice referred to in paragraph (15).

(3) Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement order shall be accompanied by five copies of the application and its annexes certified by the proposed settlement representative or its legal representative as conforming to the original.

Response to an application for a collective settlement order 4 On receiving an application for a collective settlement order, the Tribunal may give any directions it thinks fit, including for the hearing of the application. 5 The Registrar shall publish a summary of the application for a collective settlement order on the Tribunal website.

Determination of the application for a collective settlement order 6 The Tribunal may make a collective settlement order only— a if it considers that the person who proposes to be the settlement representative is a person who, if the order were made, the Tribunal could authorise to act as the settlement representative in relation to the collective settlement in accordance with paragraphs (9) to (11); and b in respect of claims which, if collective proceedings were brought, would be eligible for inclusion in such proceedings in accordance with rule 79. 7 At the hearing of the application for a collective settlement order, the Tribunal may make— a a collective settlement order; and b any other order or give any other directions as it considers appropriate. 8 Any member of the proposed settlement class may apply to make submissions either in writing or orally at the hearing of the application for a collective settlement order. 9 The Tribunal may authorise a person to act as the settlement representative only if it considers that it is just and reasonable. 10 In determining whether it is just and reasonable for a person to act as the settlement representative, the Tribunal shall consider whether that person— a would fairly and adequately act in the interests of the class members; and b does not have, in relation to the common issues for the class members, a material interest that is in conflict with the interests of the class members. 11 In determining whether the proposed settlement representative would act fairly and adequately in the interests of the class members for the purposes of paragraph (10)(a), the Tribunal may take into account all the circumstances, including— a whether the proposed settlement representative is a member of the settlement class, and if so, its suitability to manage the settlement; b if the proposed representative is not a member of the settlement class, whether it is a pre-existing body and the nature and functions of that body; and c whether the proposed settlement representative has prepared a plan for the collective settlement that satisfactorily includes— i a method for notifying the class members of the fact and progress of the collective settlement; and ii where the proposed collective settlement involves payment of an aggregate amount, a procedure for determination of claims by class members to be paid out of that amount that takes into account the size and nature of the settlement class.

The collective settlement order 12 A collective settlement order shall authorise the settlement representative to continue to act in relation to the collective settlement and shall— a state the name and address of the settlement representative; b state the name of each party to the collective settlement who would be a defendant had collective proceedings been brought; c describe or otherwise identify the settlement class; d describe or otherwise identify the claims to be settled by the collective settlement; e specify the domicile date; and f order the publication of a notice to class members in accordance with paragraph (15). 13 A collective settlement order may include any other provision the Tribunal considers appropriate. 14 In describing or otherwise identifying the settlement class for the purposes of paragraph (12)(c), it is not necessary for the order to name or specify the number of the class members.

Notice of the collective settlement order 15 The settlement representative shall give notice of the collective settlement order to class members in a form and manner approved by the Tribunal. 16 The notice referred to in paragraph (15) shall— a incorporate or have annexed to it the collective settlement order; b contain a summary in easily understood language of the claims to be settled by the collective settlement; c include a statement explaining that the subsequent making of a collective settlement approval order will bind— i a class member domiciled in the United Kingdom on the domicile date who does not opt out of the collective settlement; and ii a class member who is not domiciled in the United Kingdom on the domicile date who opts in to the collective settlement; and d give such other information as the Tribunal directs.

Variation or revocation of the collective settlement order 17 The Tribunal may, either of its own initiative or on the application of a class member or party, make an order for the variation or revocation of the collective settlement order.

Collective settlement approval order

97

(1) Where the Tribunal has made a collective settlement order, an application for a collective settlement approval order shall be made to the Tribunal by—

(a) the settlement representative; and

(b) the person who, if collective proceedings were brought in respect of the claims, would be a defendant in those proceedings or, where more than one person would be a defendant in those proceedings, such of those persons as wish to be bound by the proposed collective settlement.

(2) The application referred to in paragraph (1) shall—

(a) provide details of the claims to be settled by the proposed collective settlement;

(b) set out the terms of the proposed collective settlement, including any related provisions as to the payment of costs, fees and disbursements;

(c) contain a statement that the applicants believe that the terms of the proposed settlement are just and reasonable, supported by evidence which may include any report by an independent expert or any opinion of the applicants’ legal representatives as to the merits of the collective settlement;

(d) specify how any sums received under the collective settlement are to be paid and distributed;

(e) have annexed to it a draft collective settlement approval order; and

(f) set out the form and manner by which the settlement representative proposes to give notice of the application to members of the settlement class.

(3) Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement approval order shall be accompanied by five copies of the order and its annexes certified by the class representative or its legal representative as conforming to the original.

(4) On receiving an application for a collective settlement approval order, the Tribunal may give any directions it thinks fit, including—

(a) for the confidential treatment of any part of an application for a collective settlement approval order;

(b) for the giving of or dispensing with the notice referred to in paragraph (2)(f);

(d) for the hearing of the application.

(5) Any member of the proposed settlement class may apply to make submissions in writing or orally at the hearing of the application for a collective settlement approval order.

(6) At the hearing of the application, the Tribunal may make a collective settlement approval order where it is satisfied that terms of the collective settlement are just and reasonable.

(7) In determining whether the terms are just and reasonable, the Tribunal may take account of all relevant circumstances, including—

(a) the amount and terms of the settlement, including any related provisions as to the payment of costs, fees and disbursements;

(b) the number or estimated number of persons likely to be entitled to a share of the settlement;

(c) the likelihood of judgment being obtained if the claims were made in collective proceedings for an amount significantly in excess of the amount of the settlement;

(d) the likely duration and cost of proceedings if the claims were made in collective proceedings which proceeded to trial;

(e) any opinion by an independent expert and any legal representative of the applicants;

(f) the views of any member of the settlement class; and

(g) the provisions regarding the disposition of any unclaimed balance of the settlement, but a provision that any unclaimed balance of the settlement amount reverts to the parties paying or contributing to the settlement amount shall not of itself be considered unreasonable.

(8) A collective settlement approval order may specify the time and manner by which—

(a) a class member who is domiciled in the United Kingdom on the domicile date may opt out of the collective settlement; and

(b) a class member who is not domiciled in the United Kingdom on the domicile date may opt in to the collective settlement.

(9) A collective settlement approval order binds all class members except—

(a) a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and

(b) a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.

(10) If the Tribunal approves the proposed collective settlement, the settlement representative shall give notice of the terms of the settlement and its approval, in a form and manner approved by the Tribunal, to the class members and to any other persons as the Tribunal may direct.

(11) An application for a collective settlement approval order may be made at the same time as an application for a collective settlement order.

(12) If the Tribunal does not approve the proposed collective settlement, the application for a collective settlement approval order and the terms of the proposed collective settlement may not be relied on at the trial of the claims that are the subject of the proposed collective settlement, unless all the parties to that application agree in writing.

COSTS AND FEES

Costs

98

(1) Subject to paragraph (2), costs may be awarded to or against the class representative, but may not be awarded to or against a represented person who is not the class representative, save that—

(a) if the Tribunal has approved the appointment of a class representative for a sub-class, costs associated with the determination of the common issues for the sub-class may be awarded to or against that person, and not the class representative for the whole class; and

(b) costs associated with the determination of individual issues in accordance with rule 88(2)(c) may be awarded to or against the relevant individual represented persons.

(2) Costs relating to an application made by a class member, whether or not that class member is a represented person under a collective proceedings order, may be awarded to or against that class member.

PART 6 — GENERAL AND SUPPLEMENTARY

THE HEARING

Hearing to be in public

99

(1) Every hearing is to be in public except that a hearing or part of a hearing may be in private if the Tribunal is satisfied that it will be considering information which is, in the opinion of the Tribunal, information of the kind referred to in paragraph 1(2) of Schedule 4 to the 2002 Act.

(2) Where a hearing, or part of it, is to be held in private, the Tribunal may determine who is entitled to attend the hearing or part of it.

Quorum

100

(1) If, after the commencement of any hearing, the chairman is unable to continue, the President may appoint either of the remaining two members to chair the Tribunal; and in that case the Tribunal is to consist of the remaining two members for the rest of the proceedings.

(2) If the person appointed under paragraph (1) is not a member of the panel of chairmen, the President may attend the proceedings and advise the remaining members on any questions of law arising, or appoint some other suitably qualified person to do so.

(3) For the purposes of paragraph (2), a person is “suitably qualified” if that person is, or is qualified for appointment as, a member of the panel of chairmen.

(4) If, after the commencement of any hearing, a member of the Tribunal (other than its chairman) is unable to continue, the President may decide that the Tribunal is to consist of the remaining two members for the rest of the proceedings.

(5) Where in accordance with this rule the Tribunal consists of two members, a decision of the Tribunal shall be unanimous.

CONFIDENTIALITY

Requests for confidential treatment

101

(1) A request for the confidential treatment of any document or part of a document provided in the course of proceedings before the Tribunal shall—

(a) be made in writing indicating the relevant words, figures or passages for which confidentiality is claimed; and

(b) be supported in each case by specific reasons,

and, if so directed by the Registrar, the person making the request shall supply a non-confidential version of the relevant document.

(2) In the event of a dispute as to whether confidential treatment should be accorded, the Tribunal shall decide the matter after hearing the parties and having regard to the need to exclude information of the kind referred to in paragraph 1(2) of Schedule 4 to the 2002 Act.

(3) The Tribunal may direct that documents, or parts of a document, containing confidential information are disclosed within a confidentiality ring.

Subsequent use of documents provided in proceedings

102

(1) Subject to paragraphs (2) to (4), a party to whom a document has been provided in the course of proceedings—

(a) by the Tribunal;

(b) by another party; or

may use that document only for the purpose of those proceedings.

(2) Except where a document or a part of a document has been provided within a confidentiality ring, the restriction in paragraph (1) does not apply to a document if—

(a) subject to paragraph (5), the document has been read to or by the Tribunal, or referred to, at a hearing which has been held in public;

(b) the Tribunal gives permission; or

(3) Where a document or part of a document has been provided within a confidentiality ring, the restriction in paragraph (1) applies unless the Tribunal gives permission for further use of that document or the information contained in the document or part of a document.

(4) The restriction in paragraph (1) does not prevent the CMA or any statutory body which is the maker of a disputed decision that is remitted to it by the Tribunal from using such documents for the purposes of determining the remitted issue.

(5) The Tribunal may, either of its own initiative or on the application of a party under paragraph (6), make an order restricting or prohibiting the use of any document provided in the course of proceedings, even where the document has been read to or by the Tribunal, or referred to, at a hearing which has been held in public.

(6) An application for such an order may be made—

(a) by a party;

(b) by any person to whom the document belongs; or

DECISION OF THE TRIBUNAL

Delivery of the decision

103

(1) The decision of the Tribunal shall be delivered—

(a) by handing down the decision in public on a date fixed for that purpose;

(b) by publishing the decision on the Tribunal’s website; or

(2) The Registrar shall send a copy of the document recording the decision to each party and shall enter it on the register.

(3) The decision of the Tribunal is to be treated as having been notified on the date on which a copy of the document recording it is sent to the parties under paragraph (2).

(4) The decision of the Tribunal be published in such manner as the President considers appropriate.

Costs

104

(1) For the purposes of these rules “costs” means costs and expenses recoverable before the Senior Courts of England and Wales, the Court of Session or the Court of Judicature of Northern Ireland, as appropriate, and include payments in respect of the representation of a party to proceedings under section 47A (claims for damages) or 47B (collective proceedings) of the 1998 Act[^f00039], where the representation by a legal representative was provided free of charge.

(2) The Tribunal may at its discretion, subject to rules 48 and 49, at any stage of the proceedings make any order it thinks fit in relation to the payment of costs in respect of the whole or part of the proceedings.

(3) For the purposes of paragraph (2), applications made under rule 62 or 63 are considered to be proceedings of the Tribunal.

(4) In making an order under paragraph (2) and determining the amount of costs, the Tribunal may take account of—

(a) the conduct of all parties in relation to the proceedings;

(b) any schedule of incurred or estimated costs filed by the parties;

(d) any admissible offer to settle made by a party which is drawn to the Tribunal’s attention, and which is not a Rule 45 Offer to which costs consequences under rules 48 and 49 apply;

(e) whether costs were proportionately and reasonably incurred; and

(f) whether costs are proportionate and reasonable in amount.

(5) The Tribunal may assess the sum to be paid under any order under paragraph (2) or may direct that it be—

(a) assessed by the President, a chairman or the Registrar; or

(b) dealt with by the detailed assessment of a costs officer of the Senior Courts of England and Wales or a taxing officer of the Court of Judicature of Northern Ireland or by the Auditor of the Court of Session, as appropriate.

(6) The power to award costs under paragraphs (1) to (5) includes the power to direct any party to pay to the Tribunal such sum as may be appropriate in reimbursement of any costs incurred by the Tribunal in connection with the summoning or citation of witnesses or the instruction of experts on the Tribunal’s behalf; and any sum due as a result of such a direction may be recovered by the Tribunal as a civil debt due to the Tribunal.

Interest

105

(1) If it imposes, confirms or varies any penalty under Part 1 of the 1998 Act, the Tribunal may, in addition, order that interest is to be payable on the amount of any such penalty from such date, not being a date earlier than the date of the notice of appeal, and at such rate, as the Tribunal considers appropriate.

(2) Interest ordered to be paid under paragraph (1) is to form part of the penalty and be recoverable as a civil debt in addition to the amount recoverable under section 36 of the 1998 Act[^f00040].

(3) If it makes an award of damages the Tribunal may include in any sum awarded interest on all or any part of the damages in respect of which the award is made, for all or any part of the period between the date when the cause of action arose and—

(a) in the case of any sum paid before the decision making the award, the date of the payment; and

(b) in the case of the sum awarded, the date of that decision.

(4) Unless the Tribunal otherwise directs, the rate of interest ordered to be paid or included in an award in accordance with this rule shall not exceed the rate specified in any Order made under section 44 of the Administration of Justice Act 1970[^f00041].

106

(1) If all the parties agree the terms of an order, the Tribunal may, if it thinks fit, make the order, in which case it shall be identified as having been made by consent.

(2) If the Tribunal considers that a draft consent order may have a significant effect on competition, it may—

(a) require the parties to file a consent order impact statement; and

(b) direct the Registrar to publish a notice on the Tribunal website or in such other manner as the Tribunal may direct.

(3) A consent order impact statement shall provide an explanation of the draft consent order, including an explanation of the circumstances giving rise to the draft order, the relief to be obtained if the order is made and the anticipated effects on competition of that relief.

APPEALS FROM THE TRIBUNAL

Permission to appeal

107

(1) A request to the Tribunal for permission to appeal from a decision of the Tribunal shall be made in writing and sent to the Registrar within three weeks of the notification of that decision.

(2) A request for permission to appeal shall be signed and dated by the party or its representative and shall—

(a) state the name and address of the party and of any representative of the party;

(b) identify the Tribunal decision to which the request relates;

(d) state whether the party requests a hearing of its request and any special circumstances relied on.

Decision of the Tribunal on request for permission to appeal

108

(1) On receipt of a request for permission to appeal, the Tribunal may decide without a hearing whether or not to grant such permission, unless it considers that special circumstances render a hearing desirable.

(2) The decision of the Tribunal on a request for permission to appeal shall be recorded in writing and the Registrar shall notify the parties of the decision.

REFERENCES TO THE EUROPEAN COURT

References to the European Court

109

(1) A reference may be made by the Tribunal of its own initiative at any stage in the proceedings or on application by a party before or at the oral hearing.

(2) A reference shall include a schedule setting out the request for the preliminary ruling of the European Court and the Tribunal may give directions as to the manner and form in which the schedule is to be prepared.

(3) The proceedings in relation to which a reference is made shall, unless the Tribunal otherwise directs, be stayed (or in Scotland, sisted) until the European Court has given a preliminary ruling on the question referred to it.

(4) When a reference has been made, the Registrar shall send a copy of it to the Registrar of the European Court.

(5) In this rule—

“European Court” means the Court of Justice of the European Union;

“reference” means an order referring a question to the European Court for a preliminary ruling under Article 267 of the TFEU[^f00042] or as provided for under any agreement to which the European Union or the Member States of the European Union are parties.

SUPPLEMENTARY

Power of President, chairman and Registrar to exercise powers of Tribunal

110

(1) Any act required or authorised by these Rules, other than one required or authorised by the following rules—

(a) rules 11 and 26(3) (power to strike out);

(b) rule 13 (withdrawal of the appeal), in the case of a withdrawal during or after the hearing;

(d) rule 42 (default judgment);

(e) rule 43 (summary judgment);

(f) rule 44 (withdrawal of the claim), in the case of a withdrawal during or after the hearing;

(g) rule 77 (determination of the application for a collective proceedings order);

(h) rule 85 (stay, variation or revocation of the collective proceedings order), in the case of revocation of the collective proceedings order;

(i) rule 87 (applications for withdrawal by the class representative);

(j) rules 94(8) and 97(6) (making of a collective settlement approval order);

(k) rule 96(6) (determination of the application for a collective settlement order);

(l) rule 108 (decision of the Tribunal on request for permission to appeal);

(m) rule 109 (references to the European Court),

may be done by the President or a chairman acting alone.

(2) If so authorised by the President, the Registrar may, subject to paragraph (3) and without prejudice to rule 104(5)—

(a) make any order by consent (except where rule 106(2) applies);

(b) make a direction under rule 9(7);

(c) deal with extensions or abridgments of time limits under rule 19(2)(m), except a request for an extension of time for filing an appeal or application under Part 2 or Part 3 of these Rules;

(d) deal with requests for confidential treatment under rule 101;

(e) exercise the Tribunal’s powers in respect of the service of documents under rule 111.

(3) A party may within five days of any decision by the Registrar in accordance with paragraph (2) request in writing that the decision be reviewed by the President, and the President may determine the matter acting alone or refer the matter to a chairman or to the Tribunal.

Documents etc.

111

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