The Competition Appeal Tribunal (“CAT”) has refused to disclose a proposed representative claimant’s after-the-event insurance premiums to Google, ruling for the second time in recent months, that to do so would give the defendant an ‘unfair tactical advantage’.
As part of an application for a CPO, which will be heard in July, Liz Coll, the class representative provided a litigation funding agreement and ATE policy, as well as a litigation budget for trial. Google objected to the redaction of the deposit premium payable under the ATE policy, but the CAT rejected its challenge in a ruling earlier this week, holding that the premium was not relevant to the issues before the tribunal at the
CPO hearing and that ‘there is a risk of giving an unfair tactical advantage to the proposed defendants if we were to require disclosure of it’.
In December, disclosure of an insurance policy was also refused by the CAT in Kent v. Apple, an application to bring collective proceedings (worth up to £1.5bn) against Apple on behalf of almost 20 million iPhone and iPad users in the UK. In that instance, the tech giant had also requested that the class representative’s after-the-event (“ATE”) insurance premiums be revealed to them.
The Competition Appeal Tribunal (“CAT”) in that case refused Apple’s request on 21 December 2021, ruling that the disclosure of the policy “might give rise to an unfair tactical advantage” for Apple by “reflecting the insurer’s assessment of the merits”. While the CAT did not conclude that the premiums were subject to legal advice privilege, it did suggest the information “may possibly attract legal advice privilege and require redaction on the basis that it might allow the reader to work out what legal advice had been given the reader”. This conclusion could have major consequences for future cases.
Dr Rachael Kent, an economy professor at King’s College London is the proposed class representative for the opt-out competition claim against Apple, on behalf of users who purchased paid apps, and subscriptions or made other in-app purchases since October 2015.
In support of her application for a collective proceedings order (CPO), Kent served a litigation plan and a litigation budget for trial. The total funded amount is stated to be just under £11.3m, including the ATE insurance premiums. Kent also provided a litigation funding agreement and ATE policy – under which four insurers have covered her liability to pay Apple’s costs up to a total of £10m. Apple’s assertion that the excess provision should be disclosed was also rejected, with the CAT finding that it was ‘likely to disclose the solicitors’ assessment of risk and thus has strategic sensitivity’.
Disclosure could also give Apple ‘the opportunity to engage in litigation tactics to drive up costs beyond the budgeted amounts for any stage of the litigation and thereby put pressure on [the class representative’s] solicitors, knowing that they would bear those costs,’ the court said.
The Court will only make a CPO if it considers that it is just and reasonable to do so, which includes providing a satisfactory plan for managing the costs and fees associated with the litigation. This is a unique feature of collective proceedings in the CAT which would not apply to individual claims or Commercial Court claims. A hearing to decide whether to grant a CPO in the proposed claim brought by Kent –
who is represented by Hausfeld is scheduled to be held in May 2022.
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