Mishcon de Reya LLP has provided a detailed response to the Department for Business & Trade's 'Call for Evidence' regarding the collective actions regime for competition damages claims which introduced 'opt-out' proceedings.
The Government's Call for Evidence comes at the ten-year anniversary of the regime coming into force. In explaining the need for a Call for Evidence, the Government is considering whether the regime is delivering access to justice for consumers in a way which brings value without being disproportionately burdensome on business and economic growth more generally.
In our response, we have provided evidence to the Government drawing upon our experience in litigating the first opt-out claim to trial and several other competition damages claims before the Competition Appeal Tribunal, to the effect that:
- The number and types of cases filed under the regime are to be welcomed, and importantly they illustrate the crucial role that private enforcement plays in the wider competition law framework given the shortfall in the number of Competition & Markets Authority decisions which have generated follow-on cases.
- Any proposals to limit the scope of the regime are premature because it is too soon to ask whether the regime is fulfilling its policy goals. In particular, it has been less than one year since the first judgment following trial and other settlements. Any restrictions to the regime at this stage would therefore be detrimental to consumers and businesses alike – and there are arguments to support the adoption of a similar regime in respect of other types of consumer cases and environmental claims.
- Given the Tribunal's developing jurisprudence in opt-out collective proceedings cases, a more appropriate solution at this stage is for the Tribunal to consult on changes to its Rules and Guide to Proceedings in order to provide greater certainty to both litigants and defendants by codifying key principles and practices and to resolve some of the inconsistencies that have arisen to date.
The Call for Evidence closed on 14 October 2025. It is not yet known when the Government will announce next steps following its review of all submissions, but it has indicated that any proposed changes to the regime will be subject to consultation in due course.
A copy of our submission to the Government can be accessed here.
Further information regarding the Call for Evidence can be found here.