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The Competition Appeal Tribunal (“CAT”) has refused to disclose a proposed
representative claimant’s after-the-event insurance premiums to Google, ruling for the
second time in recent months, that to do so would give the defendant an ‘unfair tactical
advantage’.

As part of an application for a CPO, which will be heard in July, Liz Coll, the class
representative provided a litigation funding agreement and her ATE policy, as well as a
litigation budget to trial. Google objected to the redaction of the deposit premium
payable under the ATE policy, but the CAT rejected its challenge in a ruling earlier this
week, holding that the premium was not relevant to the issues before the tribunal at the
CPO hearing and that ‘there is a risk of giving an unfair tactical advantage to the
proposed defendants if we were to require disclosure of it’.

In December, disclosure of an insurance policy was also refused by the CAT in Kent v.
Apple, an application to bring collective proceedings (worth up to £1.5bn) against Apple
on behalf of almost 20 million iPhone and iPad users in the UK. In that instance the tech
giant had also requested that the class representative’s after-the-event (“ATE”)
insurance premiums be revealed to them.

The Competition Appeal Tribunal (“CAT”) refused Apple’s request on 21 December
2021, ruling that the disclosure of the policy “might give rise to an unfair tactical
advantage” for Apple by “reflecting the insurer’s assessment of the merits”.

While the CAT did not conclude that the premiums were subject to legal advice privilege,
it did suggest the information “may possibly attract legal advice privilege and require
redaction on the basis that it might allow the reader to work out what legal advice had
been given the reader”. This conclusion could have major consequences for future
cases.

Dr Rachael Kent, an economy professor at King’s College London is the proposed
class representative for the opt-out competition claim on behalf of users who
purchased paid apps, subscriptions or made other in-app purchases since October
2015.

In support of her application for a collective proceedings order (CPO), Kent served a
litigation plan and a litigation budget to trial. The total funded amount is stated to be
just under £11.3m, including the ATE insurance premiums. Kent also served a
litigation funding arrangement and her ATE policy – under which four insurers have
covered her liability to pay Apple’s costs up to a total of £10m. Apple’s assertion that
the excess provision should be disclosed was also rejected, with Morris finding that it
was ‘likely to disclose the solicitors’ assessment of risk and thus has strategic
sensitivity’.

Disclosure could also give Apple ‘the opportunity to engage in litigation tactics to
drive up costs beyond the budgeted amounts for any stage of the litigation and
thereby put pressure on [the class representative’s] solicitors, knowing that they
would bear those costs,’ Morris said.

The Court will only make a CPO if it considers that it is just and reasonable to do so,
which includes providing a satisfactory plan for managing the costs and fees
associated with the litigation. This is a unique feature of collective proceedings in the
CAT, which would not apply to individual claims or Commercial Court claims. A
hearing to decide whether to grant a CPO in the proposed claim brought by Kent –
who is represented by Hausfeld is scheduled to be held in May 2022.

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Key Contacts:
Robert Warner
Director
Robert.warner@thejudgeglobal.com

Emily Thomas
Head of Broking
Emily.thomas@thejudgeglobal.com