Competition Appeal Tribunal – 19 November 2025
(Day 1 of 2)
The first day of the collective proceedings order (CPO) application brought by the Consumers’ Association (“Which?”) against Apple saw intensive scrutiny of funding arrangements, the independence and robustness of the proposed class representative (PCR), and the financial stability of litigation funder Litigation Capital Management (LCM).
The claim accuses Apple of abusing its dominant position in cloud storage markets, causing UK iOS users to pay inflated prices for iCloud. Which? seeks both damages and injunctive relief.
But on Day 1, Apple’s submissions focused almost entirely on the authorization condition—whether Which?’s proposed representative is suitable in light of her understanding, management, and disclosure of funding arrangements.
Apple Opens With an Attack on Funding Transparency
Marie Demetriou KC for Apple began by drawing detailed comparisons with recent cases, including Gutmann, repeatedly arguing that Which? had failed to grapple with the risks in its funding structure, especially in light of LCM’s collapsing share price, high indebtedness, and warnings in its annual report.
She stressed that in previous cases, certification hearings turned on whether the PCR understood the funding terms:
“…the tribunal was concerned that the PCR had not shown that she properly understood the provision… and so she had failed to demonstrate that she was sufficiently robust to represent the interests of the class…”
Demetriou argued the same deficiencies exist here.
LCM’s Financial Crisis Takes Centre Stage
Apple submitted that LCM’s 2025 annual report shows serious uncertainty as to the funder’s ability to continue trading:
“…a material uncertainty exists, which may cause significant doubt on LCM’s ability to continue as a going concern…”
The tribunal heard submissions that LCM’s share price had collapsed by 99% since November 2024, and that the business is:
“…highly indebted… terminating investments and actively looking to see what further cases it should exit…”
Apple criticised Which? for providing no proactive disclosure of these problems and instead downplaying them.
Apple: PCR Reacted With “Aggressive Threats”, Not Transparency
A major flashpoint was a letter sent on behalf of the PCR shortly after the Gutmann judgment was handed down. Apple read to the tribunal that the PCR had threatened indemnity costs unless Apple withdrew all its submissions on funding:
“It’s resorting to aggressive threats… to procure that Apple does not raise any concerns at all about the funding arrangements…”
Apple stressed this was “the opposite of responsible, diligent, and transparent behaviour,” noting that Which? was relying on the annual report for positive points (the Dubai exoneration) while failing to mention the severe adverse financial warnings it contained.
Concerns About Termination Clauses and Priority of Payments
Another major theme was the termination rights in the litigation funding agreement.
Apple argued that a broad discretion for the funder to terminate—particularly with financial difficulties looming—posed serious risks to the class:
“…it’s bad news for the class if the funder terminates with 40 days’ notice… the class representative would need to withdraw the claim unless it could procure replacement funding…”
Apple said such clauses have been repeatedly criticised by the CAT in other cases, including Merricks, Carphone Warehouse/Google, and Roberts.
Comparison With Gutmann: Apple Says Which? Falls Short
Apple relied heavily on the Tribunal’s recent decision in Gutmann, where the Tribunal was reassured by the PCR’s prompt and detailed investigation of the funder’s concerns, backed by witness statements from both the PCR and solicitor Burnett.
By contrast, Apple said:
“What we don’t have is any equivalent in these proceedings… no witness statement from a solicitor explaining exactly what process has been gone through to interrogate the troubling financial issues…”
This, Apple said, “completely contrasted” with the diligence shown in Gutmann.
Which? Describes Apple’s concerns about LCM’s financial health as “manufactured”
Which? Counsel emphasised that the statutory test is straightforward:
“…the basic test… is whether or not it is just and reasonable for the applicant to act as class representative…”
Which? distilled its position into five core themes: that the proposed class representative is suitable and robust, fully meeting the Rule 78 requirement to “fairly and adequately” protect class members; that the funder has met all costs to date, with LCM continuing to pay invoices as they fall due; that ring-fenced Fund 2 provides stability, covering 75% of the early litigation budget through capital from institutional investors and thus remaining insulated from any volatility at parent-company level; that Apple’s funding criticisms are tactical, with Which? portraying them as manufactured litigation points rather than genuine threats to the claim’s viability; and that the Rule 78.2 criteria are satisfied overall, supported by the governance structure, cost arrangements and litigation plan forming the framework of the proposed collective proceedings.
Class Definition and Scope
Counsel for Which? also began taking the Tribunal through the class definition, including the requirement that the Apple ID region be set to the UK and the inclusion of both UK-domiciled and opt-in non-UK users.
Day 2 will continue with Which?’s submissions—especially on class definition, common issues, and suitability—and the Tribunal’s questions.
The case is Consumers’ Association (“Which?”) v Apple Inc, Apple Distribution International Limited, Apple Europe Limited & Apple Retail UK Limited at the Competition Appeal Tribunal, UK.
