CAT orders opt-out CPO for public sector class action against Motorola

The CAT has certified the first public sector CPO for collective proceedings, funded by the Government, in relation to allegedly excessive and unfair pricing for Motorola’s provision of emergency communication  services, which are essential for public safety in Great Britain (the “Airwave Services”). The PCR, Ms Clare Spottiswoode, sought certification of the proposed collective proceedings on an opt-out basis, with aggregate damages estimated to be in the region of £600–650 million, relying on the CMA’s Final Report in its market investigation, which was upheld by the Tribunal and the Court of Appeal.

The PCR brings her proposed collective proceedings on behalf of a class, comprised for the main part of public sector purchasers of Airwave Services such as Central Government Departments, local authorities, police, fire and ambulance services as well as a range of private companies, NGOs, charities and voluntary organisations.

The Tribunal concluded that the PCR meets the authorisation condition and that the proposed collective proceedings meet the eligibility condition. The Tribunal rejected Motorola’s objections to certification and dismissed its application for strike out for part of the claim. In particular, it held:

• the issues of dominance and duration of the claim were properly matters for trial rather than strike out; and
• the proposed class definition was clear and workable, rejecting Motorola’s contention that it would give rise to a conflict of interest;
• the claim should be certified on an opt-out basis (rather than opt-in as Motorola contended) as there would be a significant impediment to access to justice if smaller users and public sector class members were required to opt-in when they lacked the resources and expertise to actively participate in the proceedings. Opt-in proceedings were more practicable since the calculation of aggregate damages would be easier and the Tribunal could oversee a suitable method for distribution once the damages had been quantified. Class members would benefit from the additional safeguard of judicial supervision over any collective settlement in opt-out proceedings (which was not available for opt-in proceedings).

The Tribunal also amended clauses 7 and 9 of the PCR’s Litigation Funding Agreement following concerns raised by Motorola.

Anneli Howard KC acted for the PCR – a copy of the judgment is here.