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Withholding disclosure of ATE premiums in collective actions: a follow up to Kent v Apple

Posted on 9 February 2022

The Competition Appeal Tribunal has provided further guidance on when ATE premiums must be disclosed in the context of applications for collective proceedings orders. The decision in Coll v Alphabet Inc & Ors [2022] CAT 6 follows the CAT's judgment in Kent v Apple Inc & Anr (2021) (see our previous article here).

Background

The facts of Coll were very similar to the facts in Kent. The proposed class representative (PCR) applied for a collective proceedings order on behalf of millions of consumers in relation to allegedly abusive conduct by Google companies concerning app distribution and payment processing services. Pursuant to the application, and as required by the collective proceedings regime, the PCR disclosed a copy of her ATE insurance policy together with various other funding documents. However, the proposed defendants objected to her redaction of the premium payable under the policy.

The decision

A differently constituted Tribunal in Coll broadly agreed with the approach to the disclosure of funding arrangements and ATE policies set out in Kent. However, in Coll the Tribunal emphasised that the starting point must be that the whole of a PCR's funding arrangements are relevant to assessment of an application for a collective proceedings order. Thus, subject to issues of privilege or confidentiality, the presumption should be that if the litigation funding arrangement or ATE policy is relevant, then all of its terms are relevant and redaction must be properly justified.

The Tribunal also expressed some reservations about the phrase "strategic sensitivity", which Kent considered could be a discretionary basis for withholding disclosure. Instead, the Tribunal preferred to note that an order maintaining confidentiality may be made where another party might gain an "unfair tactical advantage" in relation to the litigation in issue, noting that this formulation stressed the need to identify both the tactical advantage said to arise from disclosure, and the element of unfairness that would result should disclosure be required.

Nevertheless, the Tribunal went on to hold that the premium in Coll, as in Kent, should remain redacted. It was not relevant to the issues to be determined at the hearing for the collective proceedings order, and there was a risk of giving an unfair tactical advantage to the proposed defendants if disclosure were required.

Conclusion

The decision in Coll slightly reframes Kent, emphasising that the CAT should be slow to permit redaction to funding arrangements and ATE premiums solely on the grounds of irrelevance, and that clear and specifically articulated reasons why the release of such information will or might cause material harm should be provided in future. Nevertheless, it seems unlikely that the decision will make full disclosure of unredacted documents in future applications for collective proceedings orders more likely than before. As acknowledged by the Tribunal, ATE premiums may well attract legal advice privilege, and in any event, provided they are clearly articulated, the risks of disclosure bestowing an unfair tactical advantage on proposed defendants currently seem likely to persuade a Tribunal.

It is also worth noting the CAT's pointed observation that the collective proceedings regime, in which PCRs are required to disclose their funding arrangements, is very different to general civil litigation, and that different considerations apply. Rather than the funded party bearing the burden of showing why disclosure should not be made, it is for their opponent to justify why it should. Funders and funded parties can therefore rest assured that, at least for the time being, they are unlikely to face more onerous requirements to disclose unredacted funding arrangements in general commercial claims.

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