Apple fails in bid to decertify collective proceedings on behalf of app developers

The Tribunal noted that its power to vary or revoke certification is part of its “gatekeeping” function, as described by the Supreme Court in Evans when explaining that the Tribunal is responsible for ensuring that the collective proceedings regime is available only in appropriate circumstances. The Tribunal described this as an “ongoing proactive responsibility”, and noted its responsibility to ensure that collective proceedings, especially opt-out proceedings, do not impose an unfair burden on defendants.

However, the Tribunal emphasised that it will not lightly revisit an order it has already made. In particular, considerations of consistency, legal certainty and finality, together with the requirement to consider whether the certification criteria “still” apply or apply “in the same way”, make clear that some sufficiently material change of circumstances relevant to certification must have occurred. 

The Tribunal noted that clarification of the law by an appellate court will not necessarily justify revisiting a CPO in another case. However, here the issues at the original certification hearing were “resonant” of those in Evans, and the Supreme Court in Evans had subsequently set out “powerfully reasoned analysis” overturning the Court of Appeal, in particular on the “strength of claims” and “practicability” factors for considering whether to certify on an opt-in or opt-out basis. The Tribunal therefore determined that it should consider the revocation question with reference to that analysis.

Dr Ennis contended that the Supreme Court’s analysis of the rule in Hollington v Hewthorn in Evans SC permitted the Tribunal to take the success of Dr Kent’s claim into account when considering the strength of his claim at an interlocutory stage. Apple meanwhile contended that the Supreme Court had only approved the use of findings of another decision-maker for the purpose of identifying the evidence that is likely to be available at trial. 

The Tribunal ultimately considered that it did not need to resolve this particular question.

However, the Tribunal considered itself able to take from Kent that there would be evidence in support of each step of Dr Ennis’ case, and that this evidence had “sufficient cogency and weight to constitute at least a serious case to answer”. The Tribunal considered that this “reinforce[d] the intrinsic strength” of Dr Ennis’ claim, at least so far as concerned with UK/EU storefronts, which the Tribunal regarded as “relatively, even unusually, strong”. 

Even without relying on Kent, therefore, the Tribunal found a marked contrast with the claims in Evans, which the Tribunal had concluded were so weak as to be liable to be struck out.

The Tribunal noted the Supreme Court’s comment in Evans that if it is practicable for proceedings to be brought on an opt-in basis, then generally they should be, given the additional advantages to claimants and burdens on defendants of opt-out proceedings.

However, the Tribunal also cited the Supreme Court’s guidance that in complex cases where the practicability question may have a different answer for different sub-groups within the class, the Tribunal is required to “stand back and make an overall assessment of the balance of justice”. 

Overall, that assessment led the Tribunal to conclude that the practicability analysis continued to favour certification on an opt-out basis, consistent with the original CPO, including because:

• The class comprised a large number of developers with small claims, and a small number with large claims, and although the latter accounted for the majority of the overall claim value, this was just one factor to be put into the mix, and not determinative in and of itself. Furthermore, the delineation between these two groups was not clear-cut.
• The Tribunal characterised the Ennis class as broadly homogeneous, where all developers have entered into substantially the same contract. There was no obvious difference between them other than their size, and no obvious point at which to distinguish between their relative sizes. The Tribunal accepted Dr Ennis’ evidence that the “overwhelming majority… of the class members could not reasonably advance their claims other than on an opt-out basis”. In so doing, it considered the likely collapse of those claims to be material (even if not a “trump card”), and gave weight to the evidence of concerns about potential retaliation by Apple in this context (without making any finding as to whether such concerns were well-founded).
• The Tribunal considered the “real question” to be “whether, when the overwhelmingly greater number of the class members could not reasonably pursue their claims other than on an opt-out basis, it imposes an unfair litigation burden on Apple for the class to encompass also the large claims which could, at least on purely economic grounds, be pursued on an opt-in basis”. For all the reasons above, and in particular where “certification of this class as a whole (including those with larger claims) secures access to justice for the numerically large cohort of claimants, with viable and serious claims, which not proceed in any other way”, the Tribunal concluded that it would not.