Key Facts
- •Apple appealed a Competition Appeal Tribunal (CAT) decision refusing to grant reverse summary judgment or strike out collective proceedings brought by Justin Gutmann.
- •The collective proceedings allege Apple abused its dominant position by concealing iPhone battery issues and secretly introducing performance management features (PMF) without transparency.
- •The PMF aimed to reduce unexpected power offs (UPOs) but slowed down the phones.
- •Gutmann, the proposed class representative, never owned an iPhone.
- •Apple's appeal rests on four grounds: the CAT's failure to strike out Gutmann's primary case, allowing an alternative case based on commercial pressure, not striking out the claim for post-December 2017 events, and refusing to disqualify Gutmann as class representative.
Legal Principles
The CAT should have a proactive role in managing large-scale collective proceedings, ensuring efficiency and preventing baseless claims.
McLaren v MOL [2022] EWCA Civ 1701
In considering whether to permit a pleaded case, the CAT should consider evidence reasonably expected by trial, such as from disclosure.
Easyair v Opal Telecom [2009] EWHC 339 (Ch)
The CAT's main case management tools are enforcing concise pleadings and striking out claims lacking reasonable prospects of success.
CAT Rules 75(3)(g) and (h)
A class representative need not be a class member, but it must be just and reasonable for them to act as such.
CAT Rule 78(1)(a) and (b)
Decisions affecting how claims are run should be regarded as being ‘as to damages’ under section 49(1A) of the Act.
O’Higgins v Barclays Bank plc [2023] EWCA Civ 876
Outcomes
Permission to appeal granted on Ground 1 (failure to strike out the primary case), deferred for 21 days to allow amendment of the claim form.
The PCR's primary case lacked sufficient technical pleading to support allegations of breach of warranty or statutory rights. While an alternative case exists, the primary claim should be removed for clarity and efficiency.
Permission to appeal refused on Ground 2 (alternative case based on commercial pressure).
The CAT reasonably concluded that further disclosure could provide evidence supporting causation, and it was entitled to consider the CMA's provisional views.
Permission to appeal refused on Ground 3 (events after December 28, 2017).
The burden of proving abuse ceased after the December 28, 2017 announcement rests on Apple, and the CAT was entitled to find this burden not met.
Permission to appeal refused on Ground 4 (Gutmann's suitability as class representative).
The CAT's decision was within its discretion. The fact that Gutmann didn't own an iPhone doesn't automatically disqualify him, and there's no presumption against professional litigants.