If Day 1 had been defined by funding arguments, as reported, Day 2 belonged to Apple’s Marie Demetriou KC, who delivered a performance so unflappable that, had the Competition Appeal Tribunal been scoring on Just a Minute rules, she would have won by a mile.
Each time the Tribunal probed, or wrestled with the economics of pecuniary loss, Demetriou responded in perfectly formed answers—no pause, no repetition, and certainly no deviation. Demetriou confidently navigated from McGregor to the EU Damages Directive and the BritNed dicta without missing a beat.
By contrast, Which?’s advocate, Philip Woolfe KC, spent much of the day on the defensive. While he advanced the case energetically, the dynamic was unmistakable: when Demetriou pressed outward with legal structure, Woolfe was often retreating inward to patch conceptual gaps.
The Issue
Day 2 focused almost entirely on Apple’s strike-out argument that a substantial proportion of Which?’s proposed class had suffered no pecuniary loss and therefore had no viable cause of action. Apple argued that English damages law requires an actual monetary loss: if a consumer paid nothing in the real world and would also have paid nothing in the competitive counterfactual, there is no actionable harm. Apple contended that the claim improperly tried to convert consumer-surplus modelling into a form of legal loss, contrary to established principles.
Which? resisted the strike-out, arguing that the alleged abuse of dominance distorted prices and choices for all iCloud users, including those on free tiers or low-storage plans. Which? maintained that reduced supply, inferior quality, or constrained terms can give rise to compensable loss even where the consumer did not pay more in cash. Their case was that economic analysis shows objective detriment caused by Apple’s conduct, and the law should recognise that harm within the framework of competition damages.
The Tribunal itself was extraordinarily active, drilling into the economic logic of consumer surplus, exploring whether a “loss” could exist where no money changed hands, and testing the boundaries of English damages law. This culminated in long exchanges about whether willingness-to-pay curves reflect subjective preferences (and thus impermissible measures of loss) or simply measure monetary value in a lawful, objective way.
Demetriou held that ground firmly. Woolfe attempted to reframe consumer surplus as an objectively quantifiable loss, deriving from foregone services rather than personal valuation, but the panel repeatedly returned to the same point: if a person paid nothing in the real world and would have paid nothing in the counterfactual world, where is the loss? And who, exactly, has a cause of action?
Woolfe often found himself hemmed in: trying to persuade the Tribunal that losses “in the diagram” were real, referring to the standard consumer-surplus diagram taken from an EU Commission Staff Working Document, even if the legal structure needed to accommodate them had yet to be recognised in English law.
The Tribunal reserved its judgment.
Apple was represented by Marie Demetriou KC of Brick Court Chambers, instructed by Linklaters LLP. Which? was represented by Philip Woolfe KC of Monckton Chambers, instructed by Hausfeld & Co. LLP.
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.
