In July, the UK government launched a consultation on a series of proposals designed to “simplify and improve” the efficiency of opt-out collective actions (Chapter 1), regulatory appeals (Chapter 2) and competition enforcement (Chapter 3). The proposals were billed as the continuation of the government’s pro-growth agenda. They follow the government’s January 2026 consultation on mergers, markets and CMA governance reform, as well as its October 2025 collective actions call for evidence, a decade-on stock-take of the UK’s opt-out collective actions regime (our earlier response to the call for evidence is available here).
The banner is “swifter and simpler”, and while some proposals meet that promise, others risk shifting delay and burden elsewhere. In this post, we look at the key proposals and summarise our views. Our full consultation response is available here.
Chapter 1 — Opt-out collective actions
| Proposal | Our take |
|---|---|
| 1. Raise the bar for certifying class actions. Bring the merits of a claim into the certification criteria by abolishing the relative suitability test in favour of an absolute suitability test. Make the cost-benefit analysis a standalone hurdle. | Support. An absolute suitability test should enable the CAT to consider the merits of a claim at certification. But, to ensure that the merits of claims are considered in all cases, additional factors should also be included in the suitability assessment (in particular, the likelihood of the claims succeeding at trial). The cost-benefit analysis should be elevated to a standalone criterion. |
| 2. Greater certainty about class representative authorisation. Views sought on how to clarify the case-law requirements for who can be authorised and how they should conduct proceedings. | Support, with qualifications. The rules should cover advisory panels, costs specialists, funding evidence and transparency on funding terms. |
| 3. Give funders and defendants early visibility on likely funder returns. The Tribunal would indicate the reasonableness of expected funder returns at certification. | Support. An indicated range at certification gives all sides real certainty up front, without locking the Tribunal into a fixed figure. |
| 4. Introduce filing fees in the CAT. Fees would scale with claim value, subject to a cap, and apply only to private litigation. | Support, with an access-to-justice floor and a high cap. In order to encourage more realistic claim values from the outset, fees should reflect the scale of reported claim valuations – this means fees for collective actions should scale well above the courts’ current £10,000 ceiling for the largest claims. |
| 5. Rule amendments to encourage ADR and settlements. Allow the Tribunal to mandate mediation and impose cost sanctions where parties unreasonably refuse to engage. Introduce Rule 45 settlement offers with automatic cost-shifting consequences. | Oppose. The Tribunal already has powers to order mediation and impose costs sanctions. Offers with automatic costs sanctions would be difficult to apply to settlements which require judicial approval. None of the proposals would engage with the key barriers to settlement in the regime. |
| 6. Increasing efficiency through panel composition changes. Proposal to amend the rules to increase flexibility in panel composition. Views sought on whether changes to the settlement approval process could be made to increase efficiency. | Support, with qualifications. A Chair sitting alone could hear straightforward collective settlement applications as well as strike-out and summary judgment applications of a purely legal nature. But having two panel members may lead to divided panels. Where settlements are reached after trial it is likely to be more efficient for the trial Tribunal to hear the approval application. |
| 7. Simplify and expand the use of CMA redress schemes. Simplify the requirements for redress schemes, provide greater certainty around protection from duplicative damages liability and introduce CMA mandated redress. | Cautious. While the proposals might improve the attractiveness of redress schemes, they do not eliminate the risk of private litigation and would remain difficult to administer (other than in straightforward cases), so are unlikely to result in a very significant uptick in the use of redress schemes. |
| 8. Shield first-in leniency applicants from private damages. Full immunity for Type A applicants, but with Tribunal power to set aside. | Rationale supported, but not clear-cut. Ensuring businesses have the necessary incentive to apply for leniency could ultimately bolster both public and private enforcement. But careful consideration of whether this proposal would significantly improve leniency uptake and the impact of this proposal on class recovery, cartelists’ liability and the deterrent effect of private enforcement is needed. |
Chapter 2 — Regulatory appeals
| Proposal | Our take |
|---|---|
| 9. Change of forum: from the CMA to the CAT. Transfer regulatory appeals in energy, water, telecoms and aviation (including price control redeterminations) from the CMA to the CAT. | Cautious. The case for a transfer from the CMA to the CAT has not been made out, in particular with respect to price control appeals. The CMA already has the combined economic, financial, legal expertise and resource / staff needed to handle these appeals, as well as the experience and procedural tools to do so effectively and efficiently. A key risk is longer resolution times and greater uncertainty for key decisions which affects stakeholder confidence, investment and customer bills. More generally, we question whether this is the right time, noting (i) applicable regulatory frameworks (notably in water) are already undergoing significant reform and therefore uncertainty, and (ii) the unprecedented level of investment which will be needed to secure resilience and achieve net zero targets and other policy goals. |
| 10. Towards a harmonised “JR+” appeal standard. Replace sector-specific appeal standards with a single “judicial review with due account of the merits” test. | Oppose. The existing standards are well established. By contrast, the new standard is ambiguous and risks reducing effective challenge of regulatory decisions for essential services. This is particularly the case if the new standard does not specifically provide for effective review of the exercise of discretion by regulators, at a pivotal moment for regulated utilities. |
| 11. Harmonised eligibility criteria to appeal and intervene. A common test across sectors for who may bring or intervene in a regulatory appeal, with a CAT permission stage. | Cautious. Harmonisation should not reduce existing clarity or narrow the ability of materially-affected parties to bring or participate in appeals. If the standard of review is harmonised across sectors, consideration should be given to stakeholders in other sectors having standing to intervene in appeals in another, where interpretation of the standard could have a read across to other sectors. |
Chapter 3 – Competition enforcement
| Proposal | Our take |
|---|---|
| 12. Allow the CMA to define its decision-making process. Remove the statutory requirement for independent decision-makers, leaving the CMA to set its own model in guidance. | Oppose. Having decision-makers independent of the case team guards against groupthink and produces better decisions. |
| 13. Give the CMA greater discretion to manage confidentiality claims. Amend or remove the requirement on the CMA to give parties reasonable opportunity to make representations on confidentiality. | Oppose. The CMA is not best placed to judge the sensitivity of businesses’ information. Reducing safeguards around information undermines trust and confidence in CMA processes. |
| 14. Require a waiver of appeal rights as part of settlement. Introduce a statutory requirement on settling parties to agree not to challenge or appeal the infringement decision. | Support. Already required by CMA guidance, but the waiver must not prevent challenges to matters outside what was agreed. |
| 15. A prescribed legal framework for confidentiality rings. | Cautious. While there is scope to reduce template negotiation, negotiation cannot be entirely avoided and a prescribed legal framework is not required. |
| 16. Revise the competition disqualifications orders (CDOs) regime. Allow the court to have regard to overseas conduct and clarify that CDOs can be made against former directors. | Mixed. Oppose extending to overseas conduct given concerns around process safeguards. How to address former directors needs to be considered in light of the public policy intentions. |
| 17. An alternative penalty cap for undertakings with no turnover up to £300,000. | Cautious. The CMA must always consider and explain why the standard 10% cap should not apply. |
The government’s consultation closed on 25 September. Early indications are that the Burnham government remains committed to delivering on these reforms. It is expected that at least some of these proposals will be taken forward in legislation alongside the mergers and markets proposals when parliamentary time allows.
For further information, please contact:
Sarina Williams, Partner, Linklaters
