The Court of Appeal today handed down judgment in Deckers UK Limited v Up & Running (UK) Limited, re-emphasising the need to assess the economic context before identifying an infringement by object under Chapter I of the Competition Act 1998.

The judgment has wide implications for the economy and is required reading for those advising clients in relation to selective distribution systems and vertical agreements more generally.

The case concerned Deckers’s arrangements for distribution of its HOKA brand of running shoes. Deckers appealed the conclusion that these constituted an infringement by object of the Chapter I prohibition, which was itself based on the finding that they had no legitimate purpose outside the protection of the integrity of its selective distribution system.

The Court of Appeal conducted an extensive review of the case law relating to the identification of infringements by object, both generally and in the context of selective distribution. It recalled the four part test set out in Case C-67/13P Groupement des Cartes Bancaires (CB) v European Commission, summarising: “In relation to an impugned measure it is necessary to examine its: (a) content; (b) objectives; (c) legal context; and (d), economic context.”

It held that to assess the arrangements purely on the basis of their subjective purpose, without carrying out an assessment of the economic context, had been incorrect in law. It further concluded that the arrangements were not infringements by object, and would in any event have benefited from the block exemption for vertical agreements (Commission Regulation (EU) No 330/2010, which was the exemption in force at the relevant time).

Alison Berridge appeared for the Appellant, Deckers UK Limited (led by Marie Demetriou KC). Earlier in the proceedings, Jenn Lawrence also appeared for the Appellant.

Nicholas Khan KC appeared for the Respondent,  Up and Running (UK) Limited.

Michael Armitage appeared for the Intervener, the Competition and Markets Authority.

The Supreme Court has handed down judgment in Dillon v Secretary of State for Northern Ireland.

The case concerns the compatibility of the Northern Ireland (Legacy and Reconciliation) Act 2023 with the European Convention of Human Rights, and the non-diminution guarantee in Article 2 of the Windsor Framework (formerly the Northern Ireland Protocol). The Act brought to an end Troubles-related inquests, new civil claims, Police Ombudsman and police investigations.

The case has significant implications for the meaning and effect of Article 2 of the Windsor Framework, including on questions of direct effect and the application of the EU Charter in domestic law post Brexit.

Jack was instructed by Darragh Mackin of Phoenix Law and acted for the lead respondents / cross-appellants (Dillon et al), and was led by John Larkin KC and Jude Bunting KC.

Following the certification of Which? v Apple (icloud) proceedings (as to which see 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.

Bristol Airport Limited v Welsh Ministers [2026] CAT 30

The Competition Appeal Tribunal (‘the CAT’) has today dismissed Bristol Airport’s appeal against the Welsh Ministers’ decision to award up to £205 million in long‑term investment funding to Cardiff International Airport.

In contrast to previous appeals in the CAT, the Welsh Ministers accepted that the subsidy fell within scope of the Subsidy Control Act 2022 (‘the Act’). This is therefore the first time that the CAT has considered whether, applying judicial review principles, a subsidy complies with various requirements of the Act.

The judgment addresses a number of significant matters, including

• The rescue and restructuring provisions at sections 19–20 of the Act, and in particular whether these requirements provide an exclusive means for awarding subsidies to ailing or insolvent enterprises;
• The approach to be taken in judicial review proceedings challenging compliance with the subsidy control principles, including the margin of judgment given to the public authority awarding the subsidy; and
• The operation of the air carrier subsidies rules at section 28 of the Act.

The judgment is available here.

George Peretz KC, Azeem Suterwalla KC, Harry Gillow and Will Perry acted for the Welsh Ministers.

The case has been covered in the press, for example by the BBC.

Consumers’ Association (“Which?”) v Apple Inc, Apple Distribution International Limited, Apple Europe Limited & Apple Retail UK Limited

On 2 April 2024, the Competition Appeal Tribunal certified the collective proceedings brought by Which? against Apple in respect of icloud services. The judgment is available here.

The claims allege that Apple has abused its dominant position in respect of the operating system for Apple devices (iOS) by unlawfully favouring its own cloud storage product, namely iCloud, to the exclusion of what is said to be the many actual and potential competitors for the provision of cloud storage services. In particular, it is claimed that:

(a) Apple deploys a set of technical restrictions and practices which prevent Apple iOS users (such as those who have iPhones or iPads) from storing certain significant file types on any cloud storage service other than iCloud; and

(b) Apple deploys unfair choice architecture practices which individually and cumulatively steer iOS users towards using and purchasing iCloud rather than any other cloud storage services available from other providers and/or limits their effective choice and/or excludes or disadvantages competitors and potential competitors.

The Tribunal’s judgment concludes that the claims were eligible for inclusion in collective proceedings and that Which? met the authorisation requirements under the collective proceedings regime. In particular, the Tribunal rejects Apple’s submissions relating to LCM as the funder of the proceedings and the proposed litigation funding agreement, which were said to affect whether it was just and reasonable for Which? to be the class representative.

Philip Woolfe KC and Jack Williams act 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.

Granville Technology Group Ltd & Ors v LG Display Co Ltd & Anor [2026] EWCA Civ 409

The Court of Appeal (Males, Snowden and Cockerill LLJ) yesterday handed down judgment in an appeal against an award of damages by the High Court (news item from 9 February 2024) in the long-running claims by Granville and OCT in respect of a cartel in the supply of LCD panels, which operated from 2001 to 2006.

The claimants, whilst successful, had argued on appeal that the High Court had been wrong to follow ‘the cautionary approach’ identified in Asda Stores Ltd v. Mastercard Inc [2017] EWHC 93 (Comm). That approach meant erring on the side of under-compensation when complete precision is not possible, which the Court of Appeal had subsequently found was the wrong approach. When this was brought to the judge’s attention at the draft judgment stage, he amended his judgment to add a footnote stating that he had reviewed his conclusions and was satisfied that they were not influenced by any reliance on such a cautionary principle. The Court of Appeal had no doubt that the Judge had carried out conscientiously the exercise of reviewing his conclusions but held that the text of his judgment had to speak for itself, and that on that basis to allow the judge’s figures to stand would leave the claimants with an understandable sense that the result was unjust.

The Court found that it would not be right to send the matter back to the same judge, and disproportionate to order a trial of the issue by another judge, so that the only possible course was for the Court to make its own adjustments, applying the ‘broad axe’. It held that the overcharge rate found below should be increased (from 4% and 8%, for the main product categories, to  6% and 10%) whilst the rate of downstream pass-on should be reduced (to 60% from 65%).

Separate grounds of appeal concerning the specification of a regression model used to estimate overcharge and the assessment of downstream pass-on were rejected on the basis that they reflected factual assessments open to the judge with  which the Court of Appeal ought not to interfere.

Stefan Kuppen acted for the successful appellants and claimants, instructed by Osborne Clarke LLP.

The Administrative Court in Wales (Lewis LJ and Chamberlain J) has dismissed a judicial review of the Welsh Ministers’ decision to introduce the Prohibition of Greyhound Racing (Wales) Bill into the Senedd. The judgment contains several points of interest for constitutional and public law practitioners.

The Greyhound Board of Great Britain argued that although the Supreme Court’s decision in AXA General Insurance v HM Advocate [2012] 1 AC 868 prevented review of Acts of the Scottish Parliament (and by analogy the Senedd) on grounds of irrationality, it left open the question whether an Act or Bill could be challenged on procedural grounds. The Claimant alleged the Welsh Ministers breached a legitimate expectation to consult on a ban before introducing the Bill. The Court held that the Senedd’s plenary legislative powers have both a substantive and a procedural consequence. The Senedd is, within its areas of competence, the sole arbiter not only of what legislation is in the interests of the people of Wales but also of how that legislation is enacted.

The Court rejected the claim that the act of introduction of a Bill by the Deputy First Minister was a reviewable decision of the executive, no different in principle from any other ministerial act. What matters is not the capacity in which a Bill is introduced, but the nature of the act itself. Introduction of a Bill is the initiating step in Senedd proceedings and an integral part of the legislative process. Reviewing it on procedural grounds would infringe the principle of separation of powers.

The Court agreed  that there was no common law or other duty on the Welsh Ministers to consult before introducing legislation in the Senedd. The legislative process itself fulfils the function of gathering views and evidence. It is for the Senedd, not the courts, to determine the terms on which that process operates. Recognising a pre-legislative consultation obligation would be inconsistent with the devolved constitutional settlement and the separation of powers.

The Claimant abandoned claims for quashing orders during the course of the hearing and sought only declaratory relief. This included declarations that the Welsh Ministers would be expected to seek the permission of the Senedd to withdraw the Bill and that the Senedd would be expected to approve its withdrawal. The Court considered that declarations designed to undermine the validity or progress of a Bill are just as constitutionally impermissible as coercive orders would be.

Having found that the introduction of the Bill by the Deputy First Minister was lawful, the challenge to the earlier political statement announcing the intention to ban greyhound racing should not be determined because first, the issue had become academic, and, secondly, the determination of a claim alleging a procedural flaw at the pre-legislative stage would be an impermissible interference with proceedings in the Senedd and the separation of powers. The adequacy of the process of consultation and evidence gathering by the Welsh Ministers was a matter for the Senedd and it would be wrong for the court to insert itself into that debate at this stage.

Ian Rogers KC represented the Welsh Ministers in Greyhound Board of Great Britain v Welsh Ministers ((1) Senedd Commission and (2) Llywydd as Interested Parties) [2026] EWHC 670 (Admin). The Senedd passed the Bill on 17 March 2026.

Gutmann v First MTR & ors [2026] CAT 21

This is the costs decision of the CAT following its judgment in the Boundary Fares litigation in 2025, in which the CAT determined that the conduct alleged against the defendant train operating companies was not abusive (on the assumption that each of them held a position of dominance) (for news item see here). On costs, the Tribunal has now determined that the CR shall pay the Defendants’ costs subject to detailed assessment. Those costs should not exceed the level of adverse costs provision covered by two deeds of indemnity (i.e. £15 million).

The Tribunal made clear that it was not suggesting that an order for costs should never be made above the amount of the CR’s adverse costs cover accepted at the time of certification, or that a non-party costs order against a funder for that excess should never be made in collective proceedings. However, it emphasised that collective proceedings are subject to a “very different regime” from an ordinary civil action, including a private action before the Tribunal.

Having found that the Defendants were capped at the limit of the indemnities the Tribunal had no need to consider the intervening funder’s alternative argument that any excess of costs over £15 million should be borne by the CR’s solicitors.

Philip Moser KC and Stefan Kuppen (instructed by Charles Lyndon) acted for Mr Gutmann.

Tim Ward KC, James Bourke, and Hugh Whelan (instructed by Slaughter and May) acted for First MTR South Western Trains.

Paul Harris KC, Anneliese Blackwood, Michael Armitage and Clíodhna Kelleher (instructed by Freshfields Bruckhaus Deringer LLP) acted for London & South Eastern Railway and Govia Thameslink Railway and others.

UK Global Healthcare Ltd v Secretary of State for Health and Social Care [2026] EWHC 561 (TCC)

This claim arises out of two contracts for the supply of 320 million medical gloves during the Covid-19 pandemic. Time was of the essence as stipulated in both contracts, which also had expiry clauses, the dates for which have passed. The gloves remain undelivered. DHSC made an upfront payment of £15,350,000 which it sought to reclaim summarily, having sent a letter of termination and/or because the expiry clauses require repayment. UKGH’s position is that it has remained ready, willing and able to supply the gloves and that DHSC waived compliance with the delivery dates, and/or is now estopped from relying on either the delivery dates or the expiry dates, and that as a result the purported termination was unlawful.

On termination, the Court (Constable J) found that If UKGH made out its case either in respect of the delivery dates or rejection, it would follow that there was a real prospect that UKGH could establish that the termination was unlawful.

In relation to the expiry clauses the judge applied a ‘prevention principle of interpretation’, a principle of construction that a contract should be interpreted, so far as possible, in such a manner as not to permit one party to take advantage of their own breach of that contract; and found that the repayment requirement in the expiry clauses was not operative to require reimbursement in circumstances where the non-delivery of the goods has been caused by a breach on the part of DHSC.

The Application was dismissed accordingly.

Philip Moser KC acted for the successful Claimant, instructed by Kleyman & Co.

The Competition Appeal Tribunal (“CAT”) has today handed down judgment in the so-called Apple Batteries collective proceedings, refusing Apple’s (second) application to strike out the entirety of the claim.

The Class Representative, Mr Gutmann, had alleged that Apple abused its dominant position in the way in which it introduced a ‘Power Management Feature’ to address unexpected power offs which were causing iPhones to shut down unexpectedly, which in turn had the effect of throttling their performance. Mr Gutmann’s claim was certified by the CAT in late 2023, and had resisted Apple’s first strike out / summary judgment application and their subsequent application for permission to appeal.

Apple’s present application was based on the recent judgments of the Supreme Court in Evans v Barclays Bank and the CAT in Gutmann v First MTR Southwestern Trains Limited. The CAT unanimously rejected Apple’s submissions on the law and refused to strike out the claim. It did however take the opportunity to re-examine the matter afresh and considered that the claim should proceed with some adjustments in respect of new iPhones and the end of the alleged infringement period. Importantly, the CAT noted that it was arguable that a lack of transparency can be a factor – indeed “a dominant factor” – in the abuse of a dominant position.

The CAT’s judgment can be found here.

Philip Moser KC and Natalie Nguyen represented the successful Class Representative, Justin Gutmann, and were instructed by Charles Lyndon.

Anneli Howard KC, Stefan Kuppen and Will Perry also act for Mr Gutmann.