In February this year, we examined in detail the first ever substantive judgment under the UK’s collective action regime, in the case of Justin Le Patourel v BT Group PLC.  Following the failure of the claim, Mr Le Patourel sought permission to appeal. That application was ultimately refused by the Court of Appeal last month.

In this article, we explore the reasons for the refusal and the impact it is likely to have on the broader landscape for UK collective actions. 

Background 

Mr Le Patourel (the CR) alleged that BT had abused its dominant position in breach of the Chapter II prohibition of the Competition Act 1998 by imposing unfair prices on customers who bought landline services from BT outside of a bundle with broadband and TV services (known as Standalone Fixed Voice Services, or SFV services). The CR sought aggregate damages of £1.1bn (before interest) on behalf of a class of approximately 2.3m people. 

As explained in our previous article, the Tribunal’s substantive judgment agreed that the prices charged by BT were excessive (at approximately 25- 49.9% above the “Cost-Plus” competitive benchmark found by the Tribunal), such that “Limb 1” of the United Brands test was satisfied. But “Limb 2” of the test was not met, as the Tribunal concluded that the SFV prices were not “unfair”. As such, there was no abuse of BT’s dominant position, and the claim failed. 

The CR applied for permission to appeal the judgment, principally on the basis that the Tribunal had made numerous errors of law in the way that it interpreted and drew conclusions from BT and the CR’s economic evidence. The Tribunal refused to grant such permission in May 2025, on the basis that the grounds of appeal put forward by the CR amounted “to no more than disagreements with the findings made by the (specialist and expert) Tribunal on the evidence”. The CR then applied to the Court of Appeal for permission. In August, the Court of Appeal also rejected the application. 

The Court of Appeal’s reasoning 

The CR's criticisms of the Tribunal’s ruling related to findings of fact, over which the Court of Appeal had no jurisdiction

The CR advanced four grounds of appeal in its application. All related to alleged errors of law by the Tribunal, as the Court of Appeal’s jurisdiction is limited to points of law and it is not empowered to overturn findings of fact unless the Tribunal acted irrationally (e.g. by failing to address relevant considerations or taking into account irrelevant considerations). However, the Court of Appeal concluded that the first three grounds of appeal amounted to challenges to the factual assessment of the Tribunal and the manner in which it reached its conclusions. The Tribunal had not acted “outside the realm of its legitimate discretion”, therefore these were not grounds over which the Court of Appeal had jurisdiction. 

Accordingly, permission to appeal could not be granted. In reaching that conclusion, the Court did however provide some views on the merits of the arguments put forward by the CR:

Ground 1: The Tribunal erred in not drawing adverse inferences from BT’s decision not to provide evidence on the indirect costs of SFV services (which went towards the determination of the relevant competitive benchmark) and to instead rely on estimates from its economic expert.

Here the Court noted that the Tribunal identified weaknesses in the evidence of both parties when it came to identifying the relevant costs, but felt able to rely on parts of it to a degree – including BT’s expert evidence. The Tribunal did not make a finding that BT had, by failing to produce actual evidence of its costs, “deliberately gamed” the system, and the Tribunal was happy, as a matter of case management, for the issue to be addressed through expert evidence. Its approach in this regard fell squarely within its ordinary discretion as fact-finder and evaluator of evidence, and there was no breach of any principle relating to the drawing of adverse inferences.

Ground 2: The method by which the Tribunal computed the common costs attributable to the SFV services when determining the relevant competitive benchmark was irrational, inconsistent with the expert evidence, and overly generous to BT.

The Court held that the CR was wrong to conclude that the Tribunal had “accepted” the evidence of BT’s expert on the calculation of standalone costs (via the so-called “SAC Combi approach”). Instead, the Tribunal arrived at its own conclusion, after conducting an exercise which attached limited relevance to BT’s expert evidence and struck a pragmatic balance between the views of both parties’ experts. According to the Court, “this was classic, informed, guesstimation or the wielding of the broad axe. It was the proper approach to take”.

Ground 3: The Tribunal committed various errors in reaching the conclusion that BT’s costs bore a reasonable relationship to the economic value of the SFV services, and that the differential between Cost-Plus and BT’s prices was therefore justified and fair.

The Court noted that the various arguments raised by the CR under this ground were unified by the overarching complaint that the Tribunal’s reasoning was “conclusionary and unexplained” in that it did not specify how far each of the sources of value pointed to by BT went to justifying the differential between “Cost-Plus” and the price of the SFV services. The Court rebutted each of these arguments in turn, despite noting that, in relation to the added-value features of the SFV services (referred to as “Gives”), the Tribunal could have done more to explain how those features combined and related to the differential, and how their value in the SFV market compared to that in the market for bundles.

More generally, the Court also noted that the Tribunal’s final analysis of the economic value of the SFV services, and whether BT’s prices were fair, ultimately turned on the weight given by the Tribunal to various pieces of evidence, each of which was impossible to quantify. In these circumstances, the Court was being asked to determine whether the conclusion reached by the Tribunal was within the bounds of its discretion. The threshold for turning such a complaint into an appealable point of law was high, and the CR had failed to meet it. 

There was no need to address the CR’s arguments on compound interest

Finally, in Ground 4, the CR argued that the Tribunal had erred in concluding it could not award compound interest. Given the CR had not successfully claimed any damages on behalf of the class, and the other grounds for permission to appeal had failed, this ground of appeal fell away and the Court refused to consider it.

Does the failure of these proceedings indicate a broader problem with the UK’s collective actions regime? 

In light of the Court of Appeal’s ruling, there are no further avenues open to the CR to challenge the Tribunal’s judgment, and no damages will be recoverable by class members. However, this does not mean that there is an underlying issue with the collective proceedings regime in the UK. 

The case involved an assessment of a standalone¹ claim for excessive and unfair pricing. As explored in our previous article, this is an area of competition law that is far from straightforward. Such claims inherently turn on complex economic evidence, and necessarily involve a great deal of judgement on the part of the Tribunal (or “guesstimation” as the Court called it), rather than the application of mechanical formulae. It also did not help the CR in this case that, in the absence of contemporaneous evidence, the correct attribution of BT’s internal costs to the SFV services was up for debate. Nor that, compared to certain other cases involving allegations of excessive pricing, the alleged excess above the competitive benchmark was relatively small.

Given these factors, alongside appeals being limited to errors of law, it was always going to be an uphill battle for the CR to overturn the Tribunal’s judgment. 

It is also worth noting in this context that the Government has announced a consultation to review various aspects of the UK’s collective actions regime, a decade on from it entering into force. We will keep an eye on this consultation to see how it progresses over the coming months and any changes that are proposed to the UK’s collective actions regime as a result. 

¹ There was no binding finding of infringement from a competition authority for the CR to rely on, although he did seek to leverage an Ofcom regulatory investigation which resulted in BT lowering its SFV prices.