Introduction

On 6 August 2025, the Competition Appeal Tribunal (CAT) handed down its judgment in Professor Barry Rodger v Alphabet Inc. and Others [2025] CAT 45, certifying a collective proceedings order (CPO) against Google. This decision marks a significant development in UK competition law, particularly in the context of digital markets and third-party app developers.

Background

The Collective Proceedings were brought by way of Claim Form with the Proposed Class Representative being Professor Barry Rogers (“PCR”) and were brought against seven total Defendant companies who collectively amounted to (and were referred to in the judgement) as “Google”. The claim itself was brought on the grounds that Google had been engaging in anti-competitive conduct via the Google Play Store and through its ownership of the Android mobile phone operating system (Google’s answer to Apple’s iOS). The allegations followed that Google, being a dominant market player in the Android app market, (1) engaged in conduct that excluded other app manufacturers who had created apps to be sold to Android users via the Google Play Store, and (2) charged unfair commission on the purchase of third-party apps, which ran up to 30% of the price.

Legal Framework

In order for a Collective Proceedings Order (“CPO”) to be granted the Competition Appeal Tribunal (“CAT”) (the primary judicial body for competition matters) needed to satisfy themselves that the test in section 47B of the Competition Act 1998 (“the Act”) and Rule 77 of the CAT Rules 2015 (“the Rules”) has been met. They therefore needed to consider:

1. Whether the proposed class representative (Professor Barry Rogers) could in fact be authorised to act as that representative; and
2. That the claims to be combined under the CPO are eligible for inclusion, i.e., fit to be heard by the CAT.

When considering whether a PCR is appropriate, the CAT must ask itself whether it is ‘just and reasonable’ for them to grant that person a CPO. This often requires consideration of the PCR’s legal funding arrangement, and whether financially the case is supported. In granting the CPO in this case, the CAT rejected concerns raised by Google in respect of the funding arrangements between the PCR and litigation funders.  Namely:

1. Whether the provisions in the litigation funding agreement unduly favoured the Funder by requiring the PCR to always procure that the Funder is paid first.
2. Whether the uplift in the level of return the Funder receives at the commencement of the trial of the liability issues in these proceedings gives rise to perverse incentives.
3. Whether the termination provisions in the LFA give undue control to the solicitor and/or Funder.
4. Whether the Funder has the ability to meet adverse costs including (i) the protection provided by the ATE Policy; and (ii) the sufficiency of indemnity.
5. The confidentiality provisions in the LFA, whether they should be removed, and whether the LFA should be published to enable scrutiny by the public and potential class members.
6. The identification of the members of the PCR’s consultative panel and whether it is too late.

In the course of doing so, they considered the principles laid down in Christine Riefa Class Representative Limited v Apple [2025] CAT 5, listed as:

1. The Tribunal may certify a claim only where it considers that it is just and reasonable for the PCR to act as the class representative.
2. In making that determination, the Tribunal must consider whether the PCR would fairly and adequately act in the interests of the class members.
3. That includes consideration of the PCR’s ability to pay the defendant’s recoverable costs, as well as its ability to fund its own costs, such that the proceedings are conducted effectively.
4. Class actions almost inevitably require third party funding. The interests of the funders are not the same as the interests of potential class members. This gives rise to inherent risks for the fulfilment of the policy objectives of the collective actions regime.
5. An important protection for potential class members is that the PCR will properly act in the best interests of the class including when agreeing any funding arrangements, and in managing the proceedings going forward including ongoing interactions with funders. That requires the PCR to be sufficiently independent and robust.
6. In forming its view as to the ability of the PCR to act fairly and adequately in the interests of potential class members the Tribunal will consider all relevant circumstances, including the question of how the PCR has satisfied itself that the funding arrangements reasonably serve and protect those interests.
7. A further protection is that the terms of any funding agreement should be open to scrutiny, not only by the court but also by the members of the class on whose behalf the claims are brought.
8. The Tribunal should nevertheless exercise caution in intervening in relation to the funder’s return under the funding arrangements, at the certification stage, bearing in mind the Tribunal’s ability to control the return to the funder at the subsequent stage of judgment or settlement. In extreme cases, however, the Tribunal’s concerns regarding

Commentary

The decision itself is notable for several reasons:

Expansion of Collective Actions:

The case reinforces the CAT’s willingness to certify collective actions in digital markets, even where the class comprises small businesses rather than consumers, in particular in matters of proposed ‘opt out’ classes.

Clarification on Funder Returns:

The Tribunal confirmed that funders may be paid from damages awarded to the class, even before class members receive their share.

Procedural Innovation:

The judgment highlights the evolving role of consultative panels and the importance of transparency in funding arrangements.

Digital Market Enforcement:

The case contributes to the growing body of competition enforcement in digital markets, particularly concerning platform dominance and app store economics.

The CAT’s certification of this collective action demonstrates the Tribunal’s readiness to engage with complex digital market issues and to facilitate access to justice for smaller market participants. For app developers, funders, and legal practitioners, this case offers valuable insights into the mechanics and viability of collective redress in the UK.