CRN response to Tribunal judgment in JLP A&A v Apple and Amazon

We are disappointed by the Competition Appeal Tribunal’s decision in JLP A&A v Apple and Amazon to impose a cap on the maximum reasonable hourly rate for class representatives. The Tribunal has capped the class representative’s rate in that case at £170 per hour and £750 per day, whilst indicating that around £150 per hour would be the maximum reasonable rate for such a case in other circumstances.

We support the Tribunal’s efforts to ensure that the class does not bear disproportionate costs. However, the collective proceedings regime must not make it uneconomic for individuals with the necessary skills and experience to take on the important and demanding role of class representative.

The Tribunal’s decision means that the class will pay considerably less for the person responsible for representing their interests and overseeing the claim than they do for the most junior trainee solicitor or paralegal on their team. We are concerned that this will trigger some highly qualified prospective class representatives to abandon the role and will deter such people from coming forward in future. The ruling also gives rise to the anomalous position that those individuals can potentially earn substantially more as advisers on opt-out consultative panels than as a class representative.

In addition to this, we are concerned that the Tribunal’s judgment appears to preclude a class representative from receiving any higher rate of remuneration for their services, even where this can be achieved without any additional cost to the class. In our view, this goes beyond protecting the class from disproportionate costs and seeks, without obvious justification, to regulate the terms of private contractual arrangements.

We hope that a consultation exercise will now take place, outside the context of individual contested proceedings. Decisions on remuneration have implications for the viability and effective operation of the collective proceedings regime as a whole and should be informed by all the relevant evidence including the views of those with practical experience of leading collective claims. Although some, very limited, data is referenced in the JLP A&A judgment, this was assembled in an exceptionally short timeframe and we are concerned that it is incomplete and contains significant inaccuracies.

The CRN has made its position known to the government through its engagement with the consultation on reforms to the opt-out collective proceedings regime and has set out its position on class representative remuneration in its response to that consultation which is available on the CRN website here.

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