Search
Following the certification of Which? v Apple (icloud) proceedings (as to which here), the Tribunal has refused Apple’s application to strike out part of Which?’s claim brought by non-purchasing class members. These are customers who did not pay for iCloud at the actual price but claim to have suffered loss in that (a) they would have purchased iCloud services at the (lower) counterfactual price and their valuation of iCloud services was higher than the counterfactual price and/or (b) they have received less storage than they would have in the competitive counterfactual. Apple objected that this was a claim for “foregone consumer surplus” based on consumers’ subjective valuations and that this did not constitute either a pecuniary loss or a recoverable form of non-pecuniary loss.
A majority of the Tribunal (Michael Cutting, Professor Alasdair Smith) concluded that Apple had not made out its case that the contested claim was bad in law, and that it was best left to trial given it raised a novel point of law and was best assessed in light of the evidence. In short, the majority concluded that the loss suffered could be characterised as either pecuniary or non-pecuniary loss – both of which are actionable in law. They found that such loss could be objectively evidenced, measured and aggregated in collective damages.
Waksman J dissented from the majority and concluded that the contested claim had no arguable basis in law and should have been struck out.
The Tribunal thereby, by majority, refused Apple’s application to strike out the contested claim and it will proceed to trial.
Philip Woolfe KC and Jack Williams acted for the successful class representative Which?, and are instructed by Boris Bronfentrinker and Elaine Whiteford of Willkie Farr & Gallagher. Proceedings are funded by Litigation Capital Management.