The Competition Appeal Tribunal has certified an opt‑out collective action alleging that Motorola abused a dominant position by charging excessive and unfair prices for access to the Airwave emergency radio network in Great Britain. 

The claim is brought on a standalone basis by Clare Spottiswoode CBE as proposed class representative (PCR) and is funded by the Home Office. Although the claim follows a CMA Market Investigation Decision - which identified features adversely affecting competition and imposed a forward‑looking charge control from August 2023 - the decision is not binding evidence of liability, which the PCR will need to prove on a ‘stand-alone’ basis. 

The PCR seeks £600–£650m in damages for alleged overcharges between 1 January 2020 and 31 July 2023. Motorola disputes liability and opposed certification on several grounds. 

The certification arguments

The Tribunal reiterated that, in considering the grant of a collective proceedings order, it must consider both the authorisation and eligibility conditions and decide whether the proceedings should be opt‑in or opt‑out, regardless of the parties’ positions. It confirmed that Ms Spottiswoode is, in principle, a suitable class representative given her public‑sector experience, her prior authorisation in Power Cables, and the calibre of her advisory panel. 

The Tribunal’s judgment therefore concentrated on three eligibility issues that were in dispute:

1. whether the proposed class definition is sufficiently clear and workable;
2. whether the action should proceed on an opt-out or an opt-in basis; and
3. whether the first nine months of the claim period should be struck out on the basis that the relevant prices were agreed in 2017, before the period of alleged dominance. 

Issue 1: Class definition 

The PCR proposed that the class should be “all Purchasers of Airwave Services during the Claim period”, with “Purchasers” including anyone who made a “specific Financial Contribution” for the use of the services – whether paying directly, or on behalf of others. The PCR’s intention was to capture any person or entity that has paid for the services either directly or indirectly, including as part of any public sector cost-sharing or contribution arrangements.

Motorola raised two objections: 

1. the proposed class definition was too vague, especially as to when a financial contribution is sufficiently “specific” to Airwave; and
2. including both direct and indirect purchasers creates a conflict within the class due to possible pass-on arguments. It therefore proposed a direct-purchasers-only class instead. 

The Tribunal dismissed both objections. On the first, it found that the PCR’s definition was clear and objective. It emphasised the need to adopt a pragmatic approach, and noted that the evidential mechanics of verifying class membership (such as through invoices or account statements) can be left to the distribution stage. 

On the second, the Tribunal rejected Motorola’s reliance on Trucks, distinguishing that case as one where intra‑class conflicts affected the damages methodology itself. Here, the PCR’s expert proposed a single, top‑down aggregate approach that treats all purchasers alike. Any difference of view within the class as to how to allocate the damages could be addressed at the distribution stage.

Issue 2: Opt-In/Opt-Out

The PCR had applied for opt-out proceedings, based on evidence showing that many public sector and charitable proposed class members (PCMs) lacked the budget and staffing to take active steps to opt in. Furthermore, a resource-intensive process of trying to contact and sign up the various PCMs would be costly, and would risk missing smaller entities. The PCR contended that this could undermine both access to justice and deterrence of anti-competitive behaviours. 

Motorola, however, argued that opt-in proceedings would be practicable. It contended that the proposed class comprised a manageable cohort of sophisticated organisations able to take the decision whether to participate. Motorola contended that an opt-in structure would facilitate informed participation, disclosure, quantification, and settlement. 

The Tribunal preferred the PCR’s position, certifying the proceedings on an opt-out basis. In reaching this conclusion, the Tribunal relied on the Court of Appeal’s finding in Le Patourel v BT that the practicability of opt-in proceedings requires more than “doability”: it requires more broadly that opt-in be reasonable, proportionate, sensible, and cost effective in the round. 

Although the Tribunal acknowledged that the two largest purchasers of Airwave Services (the Home Office, which is funding the proceedings, and the Department of Health) accounted for around 75% of charges over the relevant period, it did not consider that opt-out proceedings would risk the interests of smaller PCMs being discounted in the PCR’s litigation strategy, and accepted the evidence adduced by the PCR that smaller entities would not opt in due to the time and resources that active participation would require. The Tribunal also took into account that opt‑out proceedings better accommodate aggregate, top‑down methodologies and generalised findings on causation, and that allocation issues could be reserved for the distribution stage.

Issue 3: Strike‑out of part of the claim

Motorola sought to strike out the first nine months of the proposed claim period (January–September 2020), on the basis that prices for that period were agreed in 2017, pre-dating the period of alleged dominance. 

The Tribunal dismissed this argument, noting that it is established that prices agreed or imposed prior to dominance can become abusive if a dominant position is subsequently acquired. Liability crystallises when a dominant position and abusive conduct coincide. The PCR’s case was not dependent on the establishment of dominance at the point at which the prices charged from January–September 2020 were agreed. 

Practical takeaways and comment

This case suggests that, at the certification stage: 

1. class definitions that rely on objective, transaction‑linked criteria—such as payments specifically attributable to the services—will generally be workable where practical sources of proof are expected to exist to enable membership verification at the distribution stage; and
2. the Tribunal will gauge the practicability of opt‑in by reference to the whole class, not just its best‑resourced members. 

Generally, the judgment provides further evidence of the relatively low threshold for certification, with the Tribunal’s pragmatic approach to class definition, conflicts and the practicability of opt-in granting a certain amount of latitude to the PCR’s proposals. If this case reaches the distribution phase it will be interesting to see the ease with which the issues raised by Motorola can be resolved and the tools used to achieve this.