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The Competition Appeal Tribunal Rules 2015

Type Statutory-Instrument

Publication 2015-09-07

Last updated 2025-12-12

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(b) to have the claim struck out under rule 41; or

and that application has not been disposed of.

(3) Where the claim form has been served on the defendant in accordance with the directions of the Registrar, the claimant may not obtain default judgment unless the claimant has complied with any directions concerning proof of service.

(4) A default judgment given under this rule shall be—

(a) such judgment as it appears to the Tribunal that the claimant is entitled to on the claim form;

(b) for an amount to be decided by the Tribunal as to damages, costs and interest or for such other relief to be decided by the Tribunal in accordance with any directions it may give for the determination of those matters.

(5) A default judgment may be given against one of two or more defendants and the claimant may proceed against the other defendants.

(6) The Tribunal may only give a default judgment against one of two or more defendants in accordance with paragraph (5) if it is satisfied that the claim against that defendant can be dealt with separately from the claim against the other defendants.

(7) The Tribunal shall set aside a default judgment if the judgment was wrongly entered because any of the conditions set out in paragraph (1) were not satisfied.

(8) In any other case, the Tribunal may set aside or vary a default judgment (and attach any conditions it may think fit) if—

(a) the defendant has a real prospect of defending the claim; or

(b) it appears to the Tribunal that there is some other good reason why—

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim;

(9) In considering whether to set aside or vary a default judgment under paragraph (8)(b), the matters to which the Tribunal shall have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(10) Where—

(a) the claimant claimed a remedy in addition to damages;

(b) the claimant has abandoned its claim for that remedy in order to apply for default judgment; and

the abandoned claim is restored when the default judgment is set aside.

43

(1) The Tribunal may of its own initiative or on the application of a party, after giving the parties an opportunity to be heard, give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—

(a) it considers that—

(i) the claimant has no real prospect of succeeding on the claim or issue; or

(ii) the defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a substantive hearing.

(2) The Tribunal may give any directions it considers appropriate for dealing with an application under this rule.

(3) Upon giving summary judgment, the Tribunal may make any consequential order it considers appropriate.

44

(1) The claimant may withdraw its claim only—

(a) with the consent of the defendant; or

(b) with the permission of the Tribunal or, if no Tribunal has been constituted, the President.

(2) Where a claim is withdrawn, the Tribunal may make any consequential order it thinks fit.

45

(1) For the purposes of this rule and rules 46 to 49—

“Rule 45 Offer” means an offer to settle which is made in accordance with this rule; and

“relevant period” means— in the case of an offer made not less than 21 days before the main substantive hearing of the claim, the period specified under paragraph (3)(c) or such longer period as the parties agree; or in any other case, the period up to the end of the main substantive hearing of the claim.

(2) A Rule 45 Offer may be made at any time, including before the commencement of proceedings.

(3) A Rule 45 Offer shall—

(a) be in writing;

(b) state on its face that it is intended to be a Rule 45 Offer under these Rules;

(c) except where the Rule 45 Offer is made less than 21 days before the start of the substantive hearing of the claim, specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule 48 if the offer is accepted;

(d) state whether it relates to the whole of the claim, to part of it or to an issue that arises in it and, if so, to which part or issue;

(e) state whether it takes into account any counterclaim; and

(f) where it is made by some, but not all, of a number of defendants, state whether or not it is made in satisfaction of the claim against all defendants.

(4) A Rule 45 Offer which offers to pay or offers to accept a sum of money is to be treated as inclusive of all interest until—

(a) the date on which the period specified under paragraph (3)(c) expires; or

(b) where paragraph (3)(c) does not apply, a date 21 days after the date the Rule 45 Offer was made.

(5) A defendant's offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance is not to be treated as a Rule 45 Offer unless the claimant accepts the offer.

(6) A Rule 45 Offer is accepted by serving written notice of acceptance on the offeror.

(7) A Rule 45 Offer may—

(a) be accepted any time before the substantive hearing of the claim, unless it has already been withdrawn;

(b) only be accepted after the substantive hearing of the claim has started with the permission of the Tribunal.

(8) The fact that a Rule 45 Offer has been made shall not be communicated to the members of the Tribunal deciding the case until all questions of liability and the amount of money to be awarded have been agreed between the parties or determined by the Tribunal.

(9) Paragraph (8) does not apply where—

(a) the offeror and offeree agree in writing to that effect; or

(b) although the case has not been decided—

(i) any part of, or issue in, the case has been decided; and

(ii) the Rule 45 Offer relates only to parts or issues that have been decided.

(10) In a case to which paragraph (9)(b)(i) applies, the members of the Tribunal deciding the case may be told whether or not there are Rule 45 Offers other than those referred to in paragraph (9)(b)(ii), but must not be told the terms of any such other offers unless the offeror and offeree agree in writing to that effect.

(11) Where the claimant wishes to accept a Rule 45 Offer made by one or more, but not all, of a number of defendants—

(a) if the claimant alleges that the defendants are jointly and severally liable and the Rule 45 Offer states that it is in satisfaction of the claim against all defendants, the claimant may accept the Rule 45 Offer and the Tribunal shall then direct that the claim against the defendants who did not make the Rule 45 Offer be discontinued;

(b) if the claimant alleges that the defendants are jointly and severally liable and the Rule 45 Offer states that it is in satisfaction of the claim against those defendants making it, the claimant may—

(i) serve notice on the defendants making the Rule 45 Offer agreeing not to continue its claims against them in return for payment of the sum offered; and

(ii) continue with the claims against the other defendants;

(i) accept the Rule 45 Offer; and

(ii) continue with its claims against the other defendants;

(d) if the defendants are sued only jointly or in the alternative, the claimant may accept the Rule 45 Offer if—

(i) the claimant discontinues the claim against those defendants who have not made the Rule 45 Offer; and

(ii) those defendants give written consent to the acceptance of the Rule 45 Offer.

(12) Service of a notice under paragraph (11)(b)(i) is to be treated as acceptance of the Rule 45 Offer for the purposes of rules 47 to 49 and references in those rules to notice of acceptance are to be construed as including a reference to notice under paragraph (11)(b)(i).

(13) A Rule 45 Offer is to be treated as “without prejudice except as to costs”.

(14) This rule does not preclude a party from making an offer to settle at any time or by any other means but, if not made in accordance with this rule, it shall not have the consequences specified in rules 48 and 49.

46

(1) The offeree may, within seven days of a Rule 45 Offer being made, request the offeror to clarify the offer.

(2) If the offeror does not give the clarification requested under paragraph (1) within seven days of receiving the request, the offeree may, unless the substantive hearing of the claim has started, apply for an order that the offeror do so.

(3) If the Tribunal makes an order under paragraph (2), it shall specify the date when the Rule 45 Offer is to be treated as having been made.

47

(1) A Rule 45 Offer may only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance.

(2) The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree.

(3) Subject to paragraph (1), after the expiry of the relevant period—

(a) the offeror may withdraw the Rule 45 Offer or change its terms without the permission of the Tribunal; or

(b) the Rule 45 Offer may be automatically withdrawn in accordance with its terms.

(4) Where the offeror changes the terms of a Rule 45 Offer to make it more advantageous to the offeree, such improved offer is to be treated, not as the withdrawal of the original Rule 45 Offer, but as the making of a new Rule 45 Offer on improved terms.

(5) Subject to paragraphs (1) and (6), if the offeror serves notice, before the expiry of the relevant period, of withdrawal of the Rule 45 Offer or change of its terms to be less advantageous to the offeree, that notice has effect on the expiry of the relevant period.

(6) If the offeree serves notice of acceptance of the original Rule 45 Offer before expiry of the relevant period but after the offeror has served a notice of withdrawal of that offer or change of its terms to be less advantageous to the offeree, that acceptance has effect unless the Tribunal gives permission for the original Rule 45 Offer to be withdrawn or its terms changed.

(7) The offeror shall apply for such permission—

(a) within seven days of the offeree's notice of acceptance; or

(b) if earlier, before the first day of the substantive hearing.

(8) On an application under paragraph (7), the Tribunal may give permission for the original Rule 45 Offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original Rule 45 Offer and that it is in the interests of justice to give permission.

48

(1) Subject to paragraphs (4) and (5), where a Rule 45 Offer is accepted within the relevant period, the claimant is entitled to the relevant costs of the proceedings up to the date on which notice of acceptance of the Rule 45 Offer was served on the offeror.

(2) Subject to paragraph (4), where a Rule 45 Offer is accepted after the expiry of the relevant period, unless the parties have agreed the liability for costs or the Tribunal otherwise directs—

(a) the claimant is entitled to the relevant costs of the proceedings up to the date on which the relevant period expired; and

(b) the offeree is liable for the offeror's relevant costs for the period from the date of expiry of the relevant period to the date on which notice of acceptance was served on the offeror.

(3) The relevant costs for the purposes of paragraphs (1) and (2) are the costs related to the proceedings against the defendants making or accepting the Rule 45 Offer, except where rule 45(11)(a) applies when they are the costs of the proceedings against all defendants.

(4) Where—

(a) a Rule 45 Offer made less than 21 days before the start of the substantive hearing of the claim is accepted, or

(b) subject to paragraph (5), a Rule 45 Offer which does not relate to the whole of the claim is accepted at any time,

the Tribunal shall make an order as to costs unless the parties have agreed the liability for costs.

(5) Where—

(a) a defendant's Rule 45 Offer relates to part only of the claim; and

(b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant is only entitled to the costs of such part of the claim unless the Tribunal otherwise directs.

49

(1) This rule applies where a Rule 45 Offer is not accepted and upon judgment being handed down—

(a) a claimant fails to obtain a judgment more advantageous than a defendant's Rule 45 Offer; or

(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Rule 45 Offer.

(2) Where paragraph (1)(a) applies, the Tribunal shall, unless it considers it unjust to do so, order that any defendant who made the Rule 45 Offer, either alone or jointly with any other defendant, is entitled to—

(a) costs from the date on which the relevant period expired; and

(b) interest on those costs.

(3) Where paragraph (1)(b) applies, the Tribunal shall, unless it considers it unjust to do so, order that the claimant is entitled to—

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs on the indemnity basis from the date on which the relevant period expired;

(d) an additional amount to be determined by the Tribunal in accordance with CPR Rule 36.17(4)(d) .

(4) In considering whether it would be unjust to make the orders referred to in paragraphs (1) and (2), the Tribunal shall take into account all the circumstances of the case including—

(a) the terms of any Rule 45 Offer;

(b) the stage in the proceedings when any Rule 45 Offer was made, including in particular how long before the substantive hearing of the claim started the offer was made;

(d) the conduct of the parties to the Rule 45 Offer with regard to the giving or refusal to give information for the purposes of enabling the Rule 45 Offer to be made or evaluated; and

(e) whether the offer was a genuine attempt to settle the proceedings.

(5) Paragraphs (2) and (3) do not apply to a Rule 45 Offer—

(a) which has been withdrawn;

(b) which has been changed so that its terms are less advantageous to the offeree, where the offeree has beaten the less advantageous offer; or

(c) made less than 21 days before the substantive hearing of the claim, unless the Tribunal has abridged the relevant period.

50

(1) Rule 16 (except paragraphs (2) and (8) to (10)) applies to claims falling within this Part.

(2) The CMA may submit written observations to the Tribunal on issues relating to the application of ... Chapter I or II of Part 1 of the 1998 Act and, with the permission of the Tribunal, submit oral observations to the Tribunal.

51

Rule 17 applies to claims falling within this Part.

52

Rule 18 applies to claims falling within this Part.

53

(1) The Tribunal may at any time, on the request of a party or of its own initiative, at a case management conference, pre-hearing review or otherwise, give such directions as are provided for in paragraph (2) or such other directions as it thinks fit to secure that the proceedings are dealt with justly and at proportionate cost.

(2) The Tribunal may give directions—

(a) as to the manner in which the proceedings are to be conducted, including any time limits to be observed in the conduct of the oral hearing;

(b) that the parties file a rejoinder or other additional pleadings or particulars;

(d) requiring clarification of any matter in dispute or additional information in relation to any such matter;

(e) for the appointment and instruction of experts, whether by the Tribunal or by the parties;

(f) for the filing of a list of issues;

(g) for the production of bundles for any hearing;

(h) for the creation of a confidentiality ring;

(i) as to the fixing of time limits with respect to any aspect of the proceedings;

(j) as to the abridgement or extension of any time limits, whether or not expired;

(k) that the whole or part of any proceedings or judgment be stayed either generally or until a specified date or event;

(l) for the disclosure and the production by a party or third party of documents or classes of documents;

(m) for the costs management of proceedings, including for the provision of such schedules of incurred and estimated costs as the Tribunal thinks fit;

(n) for the award of costs or expenses, including any allowances payable to persons in connection with their attendance before the Tribunal;

(o) for the hearing of any issues as preliminary issues prior to the main substantive hearing; and

(p) for hearing a person who is not a party where, in any proceedings, it is proposed to make an order or give a direction in relation to that person.

(3) The Tribunal may also, of its own initiative—

(a) put questions to the parties;

(b) invite the parties to make written or oral submissions on certain aspects of the proceedings;

(d) ask for documents or any papers relating to the case to be produced;

(e) summon the parties' representatives or the parties in person to meetings.

(4) A request by a party for directions shall—

(a) be made in writing as soon as practicable;

(b) be supported by reasons and indicate whether it is agreed or contested by the other parties;

(d) be determined by the Tribunal taking into account the observations of the parties.

54

(1) Where it appears to the Tribunal that any proceedings would be facilitated by holding a case management conference or pre-hearing review the Tribunal may, on the request of a party or of its own initiative, give directions for such a conference or review to be held.

(2) Unless the Tribunal otherwise directs, a case management conference is to be held as soon as practicable after the service of the reply or the expiry of the time for the filing of the reply if none is served.

(3) The purpose of a first case management conference or pre-hearing review is to give directions for the efficient conduct of the proceedings including—

(a) to set a timetable up to an oral hearing in the proceedings, and if appropriate fix a date for that hearing;

(b) to clarify the forms of order sought by the parties, their arguments of fact and law and the points at issue between them;

(d) to ensure that all agreements that can be reached between the parties about the matters in issue and the conduct of the proceedings are made and recorded;

(e) to consider any issues relating to disclosure and the provision of a disclosure report and completed Electronic Documents Questionnaire in accordance with rule 60;

(f) to facilitate the settlement of the proceedings; and

(g) to determine whether the parties should be given permission to adduce expert evidence and, if so, to what extent.

(4) Where it appears to the Tribunal that any proceedings would be facilitated by holding a subsequent case management conference, the Tribunal may, on the request of a party or of its own initiative, give directions for such a conference to be held.

(5) The Tribunal may authorise the President or a chairman to carry out on its behalf a case management conference, pre-hearing review or any other preparatory measure relating to the organisation or disposal of the proceedings.

55

(1) The Tribunal may give directions as to—

(a) the provision by the parties of statements of agreed matters;

(b) the issues on which it requires evidence, and the admission or exclusion from the proceedings of evidence;

(d) whether the parties are permitted to provide expert evidence;

(e) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;

(f) the way in which evidence is to be placed before the Tribunal;

(g) the submission in advance of a hearing of any witness statements or expert reports;

(h) the examination or cross-examination of witnesses.

(2) Unless the Tribunal otherwise directs, no witness of fact or expert witness may be heard unless the relevant witness statement or expert report has been submitted in advance of the hearing and in accordance with any directions of the Tribunal under paragraph (1).

(3) The Tribunal may require any witness to give evidence on oath or affirmation or, if in writing, by way of affidavit.

(4) The Tribunal may allow a witness to give evidence through a video link or by other means.

(5) The Tribunal may dispense with the need to call a witness to give oral evidence if a witness statement or expert report has been submitted in respect of that witness.

(6) The Tribunal may limit cross-examination of witnesses to any extent or in any manner it considers appropriate.

56

(1) Subject to paragraphs (2) and (3), the Tribunal may, at any time, at the request of any party, issue a summons (or in relation to proceedings taking place in Scotland, a citation) in any form, requiring any person wherever that person may be in the United Kingdom to do one or both of the following—

(a) attend as a witness before the Tribunal, at the time and place set out in the summons or citation;

(b) answer any questions or produce any documents or other material in the possession or under the control of that person which relate to any matter in question in the proceedings.

(2) A request by a party for the issue of a summons or citation under this rule shall state with reasons—

(a) upon which facts the witness is to be questioned; and

(b) the documents or material required to be produced.

(3) No person may be required to attend in compliance with a summons or citation under this rule unless the person—

(a) has been given at least seven days' notice of the hearing; and

(b) is offered or paid such sum as would be recoverable by that witness in respect of attendance in proceedings before the Senior Courts of England and Wales, the Court of Session or the Court of Judicature of Northern Ireland, as appropriate according to any determination of the Tribunal under rule 18.

(4) The Tribunal may make the summoning or citation of a witness in accordance with paragraph (1) conditional upon the deposit with the Registrar of a sum determined by the Tribunal as sufficient to cover—

(a) the costs of the summons or citation;

(b) the sum referred to in paragraph (3)(b).

(5) The Tribunal may direct a party to serve on its behalf a summons issued under this rule and pay the sum referred to in paragraph (3)(b).

57

(1) If any party fails to comply with any direction given in accordance with these Rules, the Tribunal may, if it considers that the justice of the case so requires, order that—

(a) the requirements of the direction be waived;

(b) the failure be remedied;

(d) such party (or its representative) be subject to an order for any costs the Tribunal sees fit.

(2) Before making an order under paragraph (1)(c) or (d), the Tribunal shall give the party (or its representative) the opportunity to make submissions as to why the order should not be made.

58

(1) The Tribunal may, at any time, either of its own initiative or on the application of a party, make an order that particular proceedings be, or cease to be, subject to the fast-track procedure.

(2) Where the Tribunal has ordered that particular proceedings be subject to the fast-track procedure—

(a) the main substantive hearing is to be fixed to commence as soon as practicable and in any event within six months of an order of the Tribunal stating that the particular proceedings are to be subject to the fast-track procedure; and

(b) the amount of recoverable costs is to be capped at a level to be determined by the Tribunal.

(3) In deciding whether to make particular proceedings subject to the fast-track procedure the Tribunal shall take into account all matters it thinks fit, including—

(a) whether one or more of the parties is an individual or a micro, small or medium-sized enterprise within the meaning of Commission Recommendation No. 361 (EC) of 2003 concerning the definition of micro, small and medium-sized enterprises ;

(b) whether the time estimate for the main substantive hearing is three days or less;

(d) whether any additional claims have been or will be made in accordance with rule 39;

(e) the number of witnesses involved (including expert witnesses, if any);

(f) the scale and nature of the documentary evidence involved;

(g) whether any disclosure is required and, if so, the likely extent of such disclosure; and

(h) the nature of the remedy being sought and, in respect of any claim for damages, the amount of any damages claimed.

59

(1) A defendant to a claim may seek security for its costs of the proceedings.

(2) A request for security for costs shall be supported by written evidence.

(3) Where the Tribunal makes an order for security for costs, it shall—

(a) determine the amount of security; and

(b) direct—

(i) the manner in which, and

(ii) the time within which,

the security must be given.

(4) The Tribunal may make an order for security for costs under this rule if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order, and—

(a) one or more of the conditions in paragraph (5) or, as the case may be, paragraph (6) applies; or

(b) an enactment permits the Tribunal to require security for costs.

(5) Where a defendant seeks security for costs against the claimant, the conditions are that—

(a) the claimant is—

(i) resident out of the jurisdiction; ...

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the claimant is a company or other body (whether incorporated in or outside the United Kingdom) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so;

(c) the claimant has changed its address since the claim was commenced with a view to evading the consequences of the litigation;

(d) the claimant failed to give its address in the claim form, or gave an incorrect address in that form;

(e) the claimant is acting as a nominal claimant, other than under section 47B of the 1998 Act (collective proceedings) , and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so;

(f) the claimant has been authorised to act as the class representative in collective proceedings under rule 78 and there is reason to believe that the claimant will be unable to pay the defendant's costs if ordered to do so;

(g) the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it.

(6) Where a defendant seeks security for costs against someone other than the claimant, the conditions are that the person—

(a) has assigned the right to the claim to the claimant with a view to avoiding the possibility of a costs order being made against the person; or

(b) has contributed or agreed to contribute to the claimant's costs in return for a share of any money or property which the claimant may recover in the proceedings,

and is a person against whom a costs order may be made.

60

(1) In this rule, and in rules 61 to 65—

(a) a party discloses a document by stating that the document exists or has existed;

(b) a “disclosure report” means a report verified by a statement of truth, which—

(i) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(ii) describes where and with whom those documents are or may be located;

(iii) in the case of electronic documents, describes how those documents are stored;

(iv) estimates the broad range of costs that could be involved in giving disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(v) states which directions are to be sought regarding disclosure;

(c) an “Electronic Documents Questionnaire” means a questionnaire in the form of the questionnaire in the Schedule to Practice Direction 31B of the CPR.

(2) Subject to paragraph (3) and unless the Tribunal otherwise thinks fit—

(a) at the first case management conference, the Tribunal shall decide whether and when the disclosure report and a completed Electronic Documents Questionnaire should be filed; and

(b) at a subsequent case management conference, the Tribunal shall decide, having regard to the governing principles and the need to limit disclosure to that which is necessary to deal with the case justly, what orders to make in relation to disclosure.

(3) The Tribunal may at any point give directions as to how disclosure is to be given, and in particular—

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(d) what is required in relation to documents that once existed but no longer exist; and

(e) whether disclosure is to take place in stages.

(4) A party's duty to disclose documents is limited to documents which are or have been in its control; and for this purpose, a party has or has had a document in its control if—

(a) the document is or was in its physical possession;

(b) it has or has had a right to possession of the document; or

(5) A party need not disclose more than one copy of a document, and for that purpose a copy of a document that contains a modification, obliteration or other marking or feature is to be treated as a separate document.

(6) Any duty of disclosure continues until the proceedings are concluded.

(7) If documents to which such a duty extends come to a party's notice at any time during the proceedings, it shall immediately notify every other party.

61

A party may request disclosure of any document mentioned in—

(a) a claim form, defence, or reply to a defence;

(b) a witness statement or affidavit; or

(c) an expert report, except that any instructions referred to in an expert's report shall not (unless the party serving the report consents) be disclosed without an order of the Tribunal.

62

(1) This rule applies where an application is made to the Tribunal for disclosure before proceedings have started.

(2) The application shall be supported by evidence.

(3) The Tribunal may make an order under this rule only where—

(a) the respondent, or an associated body corporate (as defined in section 256 of the Companies Act 2006 ), is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs; and

(d) the Tribunal would, if proceedings had started, have ordered disclosure under rule 60.

(4) An order under this rule shall—

(a) specify the documents or the classes of documents which the respondent shall disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in its control; or

(ii) in respect of which it claims a right or duty to withhold disclosure.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in its control; and

(b) specify the time and place for disclosure.

63

(1) This rule applies where an application is made to the Tribunal by a party for disclosure by a person who is not a party to the proceedings.

(2) The application shall be supported by evidence.

(3) The Tribunal may make an order under this rule only where—

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule shall—

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in its control; or

(ii) in respect of which it claims a right or duty to withhold inspection.

(5) Such an order may—

(a) require the respondent to indicate what has happened to any documents which are no longer in its control; and

(b) specify the time and place for disclosure.

64

(1) A person may apply, without notice, for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the public interest.

(2) Unless the Tribunal orders otherwise, an order of the Tribunal under paragraph (1)—

(a) shall not be served on any other person; and

(b) shall not be open to inspection by any person.

(3) A person who wishes to claim a right or a duty to withhold inspection of a document, or part of a document, shall state in writing—

(a) that that person is claiming such a right or duty; and

(b) the grounds on which that person claims that right or duty.

(4) The statement referred to in paragraph (3) shall be made—

(a) in the list in which the document is disclosed; or

(b) if there is no list, to the person wishing to inspect the document.

(5) A party may apply to the Tribunal to decide whether a claim made under paragraph (3) should be upheld.

(6) For the purpose of deciding an application under paragraph (1) or paragraph (5) the Tribunal may—

(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the Tribunal;

(b) invite any person, whether or not a party, to make representations; and

(7) An application under paragraph (1) or paragraph (5) shall be supported by evidence.

(8) This rule does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.

65

Where a party inadvertently discloses a privileged document, the party who has seen the document may use it or its contents only with the permission of the Tribunal.

66

(1) An interim payment is an order for payment by the defendant (in one sum or in instalments) on account of any damages or other sum of money (except costs) which the Tribunal may hold the defendant liable to pay.

(2) The claimant may not apply for an order for an interim payment before the end of the period for filing a defence by the defendant against whom the claim is made.

(3) The claimant may make more than one application for an order for an interim payment.

(4) The Tribunal may make an interim payment order if—

(a) the defendant against whom the order is sought has admitted liability to pay damages to the claimant;

(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed; or

(c) it is satisfied that, if the claim were to be heard, the claimant would obtain judgment for a substantial amount of money (other than costs) against that defendant.

(5) The Tribunal shall not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

(6) An application for an interim payment shall be supported by evidence and include—

(a) the grounds on which an interim payment is sought; and

(b) any directions necessary in the opinion of the claimant for the determination of the application.

(7) On receiving an application for an interim payment the Registrar shall send a copy to all the other parties to the proceedings and shall inform them of the date by which they may submit written or oral observations to the Tribunal.

67

(1) This rule and rules 68 to 70 do not apply to proceedings in Scotland.

(2) The Tribunal may by order (whether interim or final) grant an injunction in all cases in which it appears to the Tribunal to be just and convenient to do so.

(3) Any such order may be made either unconditionally or on such terms and conditions as the Tribunal thinks just.

68

(1) An order for an interim injunction may be made at any time, including—

(a) before proceedings are started; and

(b) after judgment has been given.

(2) The Tribunal may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.

(3) The Tribunal may grant an interim injunction before proceedings are started only if—

(a) the matter is urgent; or

(b) it is otherwise necessary to do so in the interests of justice.

(4) Where it grants an interim remedy before proceedings are started, the Tribunal may give directions requiring a claim to be commenced.

(5) In proceedings subject to the fast-track procedure in accordance with rule 58, the Tribunal may grant an interim injunction—

(a) without requiring the applicant to provide an undertaking as to damages; or

(b) subject to a cap on the amount of the undertaking as to damages.

69

(1) The Tribunal may grant an interim remedy on an application made without notice if it appears to the Tribunal that there are good reasons for not giving notice.

(2) An application for an interim remedy shall be supported by evidence, unless the Tribunal orders otherwise.

(3) The evidence in support of the application shall—

(a) include all material information regarding the applicant's ability to pay under any undertaking as to damages that the Tribunal may require to be given; and

(b) if the application is made without notice, state the reasons why notice has not been given.

70

(1) After the granting of an injunction by the Tribunal, if a party contends that the party subject to the injunction has failed to comply, the party so contending may apply to the Tribunal for certification of the matter to the High Court in accordance with paragraph 1A of Schedule 4 to the 2002 Act (Tribunal: procedure) .

(2) Any evidence relied on in an application made under paragraph (1) shall be served on all other parties to the proceedings.

(3) The Tribunal may, after giving the parties an opportunity to be heard, make any directions as it thinks fit for determining whether to certify the matter to the High Court.

71

The Tribunal may, at any stage of the proceedings, on the request of a party or of its own initiative, and after considering any observations of the parties, direct that all or part of a claim made in proceedings brought under section 47A of the 1998 Act (proceedings before the Tribunal: claims for damages etc.) be transferred to—

(a) the High Court or the county court in England and Wales or Northern Ireland; or

(b) the Court of Session or the Sheriff Court in Scotland.

72

(1) This rule applies where any court has ordered the transfer to the Tribunal of all or part of any proceedings.

(2) The person bringing the claim shall within seven days of the order of the court transferring the claim or such other period directed by that court, file—

(a) a certified copy of the order of the court transferring the claim to the Tribunal;

(b) any pleadings and documents in support of the claim filed with the court in which the claim was begun; and

(3) As soon as practicable after receipt of the documents referred to in paragraph (2) a case management conference shall be held in accordance with rule 54.

73

(1) The rules in this Part apply to collective proceedings and collective settlement.

(2) In this Part—

“aggregate award of damages” means an award of damages made by the Tribunal in collective proceedings without undertaking an assessment of the amount of damages recoverable in respect of each represented person;

“class member” means a person falling within the class described in the collective proceedings order, or a collective settlement order, as the case may be;

“collective proceedings order” means an order made by the Tribunal authorising the continuance of collective proceedings;

“collective settlement approval order” means an order of the Tribunal approving a proposed collective settlement;

“common issues” means the same, similar or related issues of fact or law;

“domicile date” means the date specified in a collective proceedings order or collective settlement order for the purposes of determining whether a person is domiciled in the United Kingdom;

“opt-in collective proceedings” has the meaning given in section 47B(10) of the 1998 Act ;

“opt-out collective proceedings” has the meaning given in section 47B(11) of the 1998 Act; “proposed class representative” means a person who proposes to be a class representative by applying to the Tribunal to be a class representative; and

“represented person” means a class member who, in accordance with rule 82— has opted in to opt-in collective proceedings; was domiciled in the United Kingdom on the domicile date and has not opted out of opt-out collective proceedings; or has opted in to opt-out collective proceedings.

74

(1) Part 4 of these Rules applies to collective proceedings in accordance with this rule—

(2) References in Part 4 to “claim form” and “claimant” are to be read respectively as “collective proceedings claim form” and “class representative”.

(3) The following rules do not apply to collective proceedings—

(a) rule 30 (manner of commencing proceedings under section 47A of the 1998 Act);

(b) rule 33 (acknowledgment, service and notification);

(d) rule 58 (fast-track procedure);

(e) rule 71 (transfer of claims from the Tribunal);

(f) rule 72 (transfer of claims to the Tribunal).

(4) The following rules apply to collective proceedings with the following modifications—

(a) rule 35 (defence to a claim): the time limit for the filing of the defence in rule 35(1) does not apply;

(b) rule 36 (reply to defence): the time limit for the filing of the reply in rule 36(1) does not apply;

(c) rule 42 (default judgment): default judgment may only be given in collective proceedings after the Tribunal has made a collective proceedings order in accordance with rule 80;

(d) rule 54 (case management conference): references to the first case management conference are to be read as referring to the first case management conference after the Tribunal has made a collective proceedings order in accordance with rule 80;

(e) rule 60 (disclosure by parties to the proceedings): references to the first case management conference are to be read as referring to the first case management conference after the Tribunal has made a collective proceedings order in accordance with rule 80;

(5) Rule 44 (withdrawal) applies to collective proceedings, in accordance with rules 86 (individual settlement by the class representative) and 87 (applications for withdrawal by the class representative);

(6) A collective proceedings order and a collective settlement order may be limited to only some parts or issues in the claims to which it relates.

75

(1) An application to commence collective proceedings shall be made by the proposed class representative filing a collective proceedings claim form.

(2) The collective proceedings claim form shall state—

(a) the full name and address of the proposed class representative;

(b) the full name and address of the proposed class representative's legal representative;

(d) the name and address of each defendant to the proceedings;

(e) that the proposed class representative is making an application for a collective proceedings order;

(f) whether the application relates to proposed opt-in collective proceedings or opt-out collective proceedings;

(g) whether the parties have used an alternative dispute resolution procedure; and

(h) that the proposed class representative believes that the claims which it is sought to combine in the collective proceedings have a real prospect of success.

(3) The collective proceedings claim form shall contain—

(a) description of the proposed class;

(b) a description of any possible sub-class and how it is proposed that their interests may be represented;

(d) a summary of the basis on which the proposed class representative seeks to be authorised to act in that capacity in accordance with rule 78;

(e) a summary of the basis on which it is contended that the criteria for certification and approval in rule 79 are satisfied;

(f) a statement as to whether the claims are in respect of an infringement decision, and if so whether that decision has become final within the meaning of section 58A of the 1998 Act (infringement decisions) ;

(g) a concise statement of the relevant facts, identifying, where applicable, any relevant findings in an infringement decision;

(h) a concise statement of any contentions of law which are relied on;

(i) the relief sought in the proceedings including—

(i) where applicable, an estimate of the amount claimed in damages, including whether an aggregate award of damages is sought, supported by an explanation of how that amount has been calculated;

(ii) details of any other claim for a sum of money;

(iii) in proceedings in England and Wales or Northern Ireland, whether the proposed class representative is making an application for an injunction;

(j) observations on the question in which part of the United Kingdom the proceedings are to be treated as taking place under rule 18; and

such other matters as may be specified by practice direction.

(4) The contents of the collective proceedings claim form shall be verified by a statement of truth signed and dated by the proposed class representative or on its behalf by its duly authorised officer or legal representative.

(5) There shall be annexed to the collective proceedings claim form—

(a) a copy of any infringement decision referred to in paragraph (4)(f) and any other document referred to in the collective proceedings claim form;

(b) a draft collective proceedings order; and

(6) Unless the Tribunal otherwise directs, the signed original of the collective proceedings claim form shall be accompanied by five copies of the form and its annexes certified by the proposed class representative or its legal representative as conforming to the originals.

(7) When filing the collective proceedings claim form, the proposed class representative shall also indicate the method by which it proposes to effect service on the defendant and provide any other information with regard to service of the collective proceedings claim form as may be specified by practice direction.

76

(1) On receiving a collective proceedings claim form, the Registrar shall send an acknowledgment of receipt to the proposed class representative and, except where paragraph (2) applies, direct that the proposed class representative serve the collective proceedings claim form on the defendant.

(2) Where service of the collective proceedings claim form outside the jurisdiction requires the permission of the Tribunal in accordance with rule 31, the collective proceedings claim form may be served on the defendant only if permission is granted.

(3) The Registrar's direction for service under paragraph (1) may specify any matter the Registrar may consider appropriate with regard to the service of the collective proceedings claim form, including—

(a) the time within and the method by which service of the collective proceedings claim form is to be effected;

(b) the documents that are to accompany the collective proceedings claim form including the acknowledgment of service in the form required by the Tribunal;

(c) the information to be provided to the Registrar by the proposed class representative concerning the date of service and the calculation of the time limit for acknowledging service; and

(d) the provision of any other information that may be required by the Registrar (whether by way of certificate of service, verified by a statement of truth, witness statement or otherwise) regarding the service of the collective proceedings claim form and;

(e) the time within which any information required by the Registrar is to be provided.

(4) Where the collective proceedings claim form is served on a defendant domiciled in the United Kingdom, the defendant shall within seven days of receipt of the copy of the collective proceedings claim form file an acknowledgment of service of the claim in the form provided by the Registrar.

(5) Where the collective proceedings claim form is served on a foreign defendant, the period for acknowledging service set out in paragraph (4) shall be varied so as to accord with the period applicable under Part 6 of the CPR in relation to proceedings in England and Wales or the equivalent provisions in the equivalent procedural rules for Scotland or Northern Ireland in relation to proceedings taking place in Scotland or Northern Ireland respectively.

(6) The proposed class representative shall send a copy of the collective proceedings claim form to the CMA at the same time as it is served on the other parties to the claim.

(7) The Registrar shall as soon as practicable notify the proposed class representative of the receipt of an acknowledgment of service from the defendant.

(8) The Registrar shall publish a summary of the collective proceedings claim form on the Tribunal website and in any other manner the President may direct.

(9) As soon as practicable, the Tribunal shall hold a case management conference to give directions in relation to the application for a collective proceedings order.

(10) The Tribunal may give directions—

(a) as regards any question concerning service out of the jurisdiction;

(b) as to the time by which the defendant shall respond to the application for a collective proceedings order;

(c) as to the time by which any person with an interest (including any class member) may object to the application for a collective proceedings order or the authorisation of the proposed class representative;

(d) regarding the hearing of the application; or

(e) as to a stay of proceedings while the parties attempt to compromise the proceedings by alternative dispute resolution or other means.

(11) Subject to any directions of the Tribunal, the defendant does not need to file a defence before the hearing of the application for a collective proceedings order.

(12) A defendant who opposes an application for a collective proceedings order does not, by doing so, lose any right that the defendant may have to dispute the Tribunal's jurisdiction.

77

(1) The Tribunal may make a collective proceedings order, after hearing the parties, only—

(a) if it considers that the proposed class representative is a person who, if the order were made, the Tribunal could authorise to act as the class representative in those proceedings in accordance with rule 78; and

(b) in respect of claims or specified parts of claims which are eligible for inclusion in collective proceedings in accordance with rule 79.

(2) If the Tribunal makes a collective proceedings order it may attach such conditions to the order or give such directions as it thinks fit, including—

(a) directions for filing and service of the order, pleadings and any other document in relation to the collective proceedings; and

(b) directions regarding any class member who is a child or person who lacks capacity.

78

(1) The Tribunal may authorise an applicant to act as the class representative—

(a) whether or not the applicant is a class member, but

(b) only if the Tribunal considers that it is just and reasonable for the applicant to act as a class representative in the collective proceedings.

(2) In determining whether it is just and reasonable for the applicant to act as the class representative, the Tribunal shall consider whether that person—

(a) would fairly and adequately act in the interests of the class members;

(b) does not have, in relation to the common issues for the class members, a material interest that is in conflict with the interests of class members;

(c) if there is more than one applicant seeking approval to act as the class representative in respect of the same claims, would be the most suitable;

(d) will be able to pay the defendant's recoverable costs if ordered to do so; and

(e) where an interim injunction is sought, will be able to satisfy any undertaking as to damages required by the Tribunal.

(3) In determining whether the proposed class representative would act fairly and adequately in the interests of the class members for the purposes of paragraph (2)(a), the Tribunal shall take into account all the circumstances, including—

(a) whether the proposed class representative is a member of the class, and if so, its suitability to manage the proceedings;

(b) if the proposed class representative is not a member of the class, whether it is a pre-existing body and the nature and functions of that body;

(c) whether the proposed class representative has prepared a plan for the collective proceedings that satisfactorily includes—

(i) a method for bringing the proceedings on behalf of represented persons and for notifying represented persons of the progress of the proceedings; and

(ii) a procedure for governance and consultation which takes into account the size and nature of the class; and

(iii) any estimate of and details of arrangements as to costs, fees or disbursements which the Tribunal orders that the proposed class representative shall provide.

(4) If the represented persons include a sub-class of persons whose claims raise common issues that are not shared by all the represented persons, the Tribunal may authorise a person who satisfies the criteria for approval in paragraph (1) to act as the class representative for that sub-class.

79

(1) The Tribunal may certify claims as eligible for inclusion in collective proceedings where, having regard to all the circumstances, it is satisfied by the proposed class representative that the claims sought to be included in the collective proceedings—

(a) are brought on behalf of an identifiable class of persons;

(b) raise common issues; and

(2) In determining whether the claims are suitable to be brought in collective proceedings for the purposes of paragraph (1)(c), the Tribunal shall take into account all matters it thinks fit, including—

(a) whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues;

(b) the costs and the benefits of continuing the collective proceedings;

(c) whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class;

(d) the size and the nature of the class;

(e) whether it is possible to determine in respect of any person whether that person is or is not a member of the class;

(f) whether the claims are suitable for an aggregate award of damages; and

(g) the availability of alternative dispute resolution and any other means of resolving the dispute, including the availability of redress through voluntary schemes whether approved by the CMA under section 49C of the 1998 Act or otherwise.

(3) In determining whether collective proceedings should be opt-in or opt-out proceedings, the Tribunal may take into account all matters it thinks fit, including the following matters additional to those set out in paragraph (2)—

(a) the strength of the claims; and

(b) whether it is practicable for the proceedings to be brought as opt-in collective proceedings, having regard to all the circumstances, including the estimated amount of damages that individual class members may recover.

(4) At the hearing of the application for a collective proceedings order, the Tribunal may hear any application by the defendant—

(a) under rule 41(1), to strike out in whole or part any or all of the claims sought to be included in the collective proceedings; or

(b) under rule 43(1), for summary judgment.

(5) Any member of the proposed class may apply to make submissions either in writing or orally at the hearing of the application for a collective proceedings order.

80

(1) A collective proceedings order shall authorise the class representative to act as such in continuing the collective proceedings and shall—

(a) state the name and address for service of the class representative or, where there are sub-classes, representatives;

(b) state the name of each defendant;

(d) describe or otherwise identify the claims certified for inclusion in the collective proceedings;

(e) state the remedy sought;

(f) state whether the collective proceedings are opt-in or opt-out collective proceedings;

(g) specify the domicile date;

(h) specify the time and the manner by which—

(i) in the case of opt-in collective proceedings, a class member may opt in;

(ii) in the case of opt-out collective proceedings, a class member who is domiciled in the United Kingdom on the domicile date may opt out; and

(iii) in the case of opt-out collective proceedings, a class member who is not domiciled in the United Kingdom on the domicile date may opt in;

(i) order the publication of a notice to class members in accordance with rule 81; and

(j) specify the part of the United Kingdom in which the collective proceedings are to be treated as taking place.

(2) In describing or otherwise identifying the class for the purposes of paragraph (1)(c), it is not necessary for the order to name or specify the number of the class members.

81

(1) The class representative shall give notice of the collective proceedings order to class members in a form and manner approved by the Tribunal.

(2) The notice referred to in paragraph (1) shall—

(a) incorporate or have annexed to it the collective proceedings order;

(b) identify each defendant;

(d) include a statement explaining that any judgment on the common issues for the class members or any sub-class will bind represented persons in the class, or those within the sub-class;

(e) draw attention to the provisions of the order setting out what a class member is required to do and by what date so as to opt into or opt out of the collective proceedings and

(f) give such other information as the Tribunal directs.

82

(1) A class member may on or before the time and in the manner specified in the collective proceedings order—

(a) in the case of opt-in collective proceedings, opt into the collective proceedings; or

(b) in the case of opt-out collective proceedings, either—

(i) opt out of the collective proceedings; or

(ii) if not domiciled in the United Kingdom at the domicile date, opt into the collective proceedings.

(2) A class member who does not opt in or opt out in accordance with paragraph (1) may not do so without the permission of the Tribunal.

(3) In considering whether to grant permission under paragraph (2), the Tribunal shall consider all of the circumstances, including in particular—

(a) whether the delay was caused by the fault of that class member; and

(b) whether the defendant would suffer substantial prejudice if permission were granted.

(4) A class member who has already brought a claim that raises one or more of the common issues set out in the collective proceedings order may not be a represented person unless the class member:

(a) discontinues the claim, or;

(b) for claims brought in England, Wales or Northern Ireland, applies to stay that claim, or;

(c) for claims brought in Scotland, applies to sist that claim before the time specified in the collective proceedings order under rule 80(1)(h) to opt into or out of the collective proceedings.

83

(1) After a collective proceedings order has been made, the class representative shall establish a register on which it shall record the names of those class members who, in accordance with rule 82, opt in to or opt out of the collective proceedings.

(2) The class representative shall, on request, make such register available for inspection by the Tribunal and any defendant and by such other person as the Tribunal may direct.

84

A class representative may not in collective proceedings bring different claims or bring claims against different defendants to those specified in the collective proceedings order.

85

(1) The Tribunal may at any time, either of its own initiative or on the application of the class representative, a represented person or a defendant, make an order for the variation or revocation of the collective proceedings order, or for the stay or sist of collective proceedings.

(2) In deciding whether to vary or revoke a collective proceedings order, the Tribunal shall take account of all the relevant circumstances, including in particular—

(a) whether the criteria for certification of claims set out in rule 79 still apply or apply in the same way as when the order was made; and

(b) whether the class representative continues to satisfy the criteria for authorisation set out in rule 78 and if not, whether a suitable alternative class representative can be authorised;

(c) whether the Tribunal has granted the class representative permission to withdraw in accordance with rule 87 and it will not be substituted.

(3) If the Tribunal makes an order under paragraph (1), the order may also make further provision including—

(a) that the proceedings should be discontinued in whole or in part or continue between different parties and, for that purpose, the Tribunal may—

(i) order the addition, removal or substitution of parties; or

(ii) order the amendment of the collective proceedings claim form;

(b) that there be substituted as the class representative another person who satisfies the criteria for approval in rule 78;

(4) If the Tribunal varies the collective proceedings order so as to alter the description or identification of class members, it may also make any other orders that it considers appropriate, including an order relating to the specified time for the purposes of rules 80 and 82.

86

If the class representative in opt-in collective proceedings is a member of the class and settles in whole or part its personal claim included within the collective proceedings, it shall promptly give notice of that fact—

(a) to all represented persons; and

(b) to the Tribunal.

87

(1) A class representative may only withdraw from acting in that capacity in the collective proceedings if the Tribunal gives permission for the withdrawal.

(2) The Tribunal may only give permission for the withdrawal under paragraph (1)—

(a) if it is satisfied that the class representative has given notice of the application to withdraw to represented persons in a form and manner approved by the Tribunal; and

(b) on conditions as to costs, if any, that the Tribunal considers just.

(3) If the Tribunal gives permission for the class representative to withdraw from acting in that capacity and no substitute class representative is approved, the Tribunal may give directions for the future conduct of the proceedings which may include provision that the proceedings should continue as one or more proceedings between different parties or be discontinued.

88

(1) The Tribunal may, at any time, give any directions it thinks appropriate for the case management of the collective proceedings.

(2) Without limitation to the generality of paragraph (1), such directions may order that—

(a) the common issues for the class be determined together;

(b) the common issues for a sub-class be determined together;

(c) issues that are relevant only to certain represented persons (“individual issues”) be determined in further hearings either separately or at the same time;

(d) the class representative give notice in such manner as the Tribunal directs to represented persons of any step taken by the class representative.

(3) If the Tribunal directs that the participation of any represented persons is necessary in order to determine individual issues, the class representative shall give notice of the further hearings to those persons in a form and manner approved by the Tribunal.

89

(1) In addition to the Tribunal's general powers under these Rules to order disclosure, the Tribunal may order, on any terms it thinks fit, disclosure to be given—

(a) by any party to the collective proceedings to any other party;

(b) by the class representative to any or all represented persons; and

(c) by any represented person to any other represented person (including a person within a different sub-class), the class representative or the defendant.

90

If a class member or represented person does not receive, or fails to respond to, a notice, this does not affect a step taken, order made or judgment given, in the collective proceedings, unless the Tribunal orders otherwise.

91

(1) A judgment or order of the Tribunal made in collective proceedings may specify the sub-class of represented persons or individual represented persons to whom it shall not apply.

(2) The class representative shall give notice of any judgment or order to all represented persons in a form and manner approved by the Tribunal.

(3) Unless ordered otherwise by the Tribunal, the notice referred to in paragraph (2) shall—

(a) incorporate or have annexed to it the judgment or order;

(b) if it relates to a judgment on common issues in favour of represented persons, include a statement in easily understood language—

(i) explaining that represented persons may be entitled to individual remedies;

(ii) stating the steps that shall be taken to claim that remedy; and

(iii) stating the consequences of failing to take those steps;

(i) informing them that an appeal may be brought only by the class representative; and

(ii) stating the date by which the class representative would have to serve a notice of appeal or application for permission to appeal;

(d) if the Tribunal has specified under paragraph (1) that some represented persons are not bound by the judgment or order, a statement to that effect; and

(e) give such other information as the Tribunal directs.

92

(1) Where the Tribunal makes an aggregate award of damages, it shall give directions for assessment of the amount that may be claimed by individual represented persons out of that award.

(2) Directions given may include—

(a) a method or formula by which such amounts are to be quantified;

(b) provision for making an interim payment before the final amount which a represented person may receive is determined;

(c) the appointment of an independent third party to determine a claim or dispute by any represented person regarding the quantification of the amount which that person will receive, and provision for payment of the costs of that independent third party; and

(d) a requirement that the apportionment of the aggregate award as between represented persons is approved by the Tribunal.

(3) The class representative shall give notice to represented persons, in such manner as the Tribunal directs, of any hearing to determine what directions should be given in accordance with paragraph (1), and any represented person may apply to the Tribunal to make submissions either in writing or orally at that hearing.

93

(1) Where the Tribunal makes an award of damages in opt-out collective proceedings, it shall make an order providing for the damages to be paid on behalf of the represented persons to—

(a) the class representative; or

(b) such person other than a represented person as the Tribunal thinks fit.

(2) Where the Tribunal makes an award of damages in opt-in collective proceedings, it may make an order as described in paragraph (1).

(3) An order made in collective proceedings in accordance with paragraphs (1) and (2), may specify—

(a) the date by which represented persons shall claim their entitlement to a share of that aggregate award;

(b) the date by which the class representative or person specified in accordance with paragraph (1)(b) shall notify the Tribunal of any undistributed damages which have not been claimed;

(4) Where the Tribunal is notified that there are undistributed damages in accordance with paragraph (3)(b), it may make an order directing that all or part of any undistributed damages is paid to the class representative in respect of all or part of any costs, fees or disbursements incurred by the class representative in connection with the collective proceedings.

(5) In exercising its discretion under paragraph (4), the Tribunal may itself determine the amounts to be paid in respect of costs, fees or disbursements or may direct that any such amounts be determined by a costs judge of the High Court or a taxing officer of the Supreme Court of Northern Ireland or the Auditor of the Court of Session.

(6) Subject to any order made under paragraph (4), the Tribunal shall order that all or part of any undistributed damages is paid to the charity designated in accordance with section 47C(5) of the 1998 Act and a copy of that order shall be sent to that charity.

94

(1) Where a collective proceedings order has been made and the Tribunal has specified that the proceedings are opt-out collective proceedings, the claims which are the subject of the collective proceedings, may not be settled other than by a collective settlement approval order issued in accordance with this rule.

(2) Any offer to settle by a defendant in the collective proceedings shall be made to the class representative.

(3) An application for a collective settlement approval order shall be made to the Tribunal by—

(a) the class representative; and

(b) the defendant in the collective proceedings, or if there is more than one defendant, such of them as wish to be bound by the proposed collective settlement.

(4) The application referred to in paragraph (3) shall—

(a) provide details of the claims to be settled by the proposed collective settlement;

(b) set out the terms of the proposed collective settlement, including any related provisions as to the payment of costs, fees and disbursements;

(c) contain a statement that the applicants believe that the terms of the proposed settlement are just and reasonable, supported by evidence which may include any report by an independent expert or any opinion of the applicants' legal representatives as to the merits of the collective settlement;

(d) specify how any sums received under the collective settlement are to be paid and distributed;

(e) have annexed to it a draft collective settlement approval order; and

(f) set out the form and manner by which the class representative proposes to give notice of the application to—

(i) represented persons, in a case where it is expected that paragraph (11) will apply; or

(ii) class members, in a case where it is expected that paragraph (12) will apply.

(5) Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement approval order shall be accompanied by five copies of the application and its annexes certified by the class representative or its legal representative as conforming to the original.

(6) On receiving an application for a collective settlement approval order, the Tribunal may give any directions it thinks fit, including—

(a) for the confidential treatment of any part of an application for a collective settlement approval order;

(b) for the giving of or dispensing with the notice referred to in paragraph (4)(f);

(d) for the hearing of the application.

(7) Any represented person or, in a case where paragraph (12) applies, any class member may apply to make submissions either in writing or orally at the hearing of the application for a collective settlement approval order.

(8) At the hearing of the application, the Tribunal may make a collective settlement approval order where it is satisfied that the terms of the collective settlement are just and reasonable.

(9) In determining whether the terms are just and reasonable, the Tribunal shall take account of all relevant circumstances, including—

(a) the amount and terms of the settlement, including any related provisions as to the payment of costs, fees and disbursements;

(b) the number or estimated number of persons likely to be entitled to a share of the settlement;

(c) the likelihood of judgment being obtained in the collective proceedings for an amount significantly in excess of the amount of the settlement;

(d) the likely duration and cost of the collective proceedings if they proceeded to trial;

(e) any opinion by an independent expert and any legal representative of the applicants;

(f) the views of any represented person in a case to which paragraph (11) applies, or of any class member in a case to which paragraph (12) applies; and

(g) the provisions regarding the disposition of any unclaimed balance of the settlement, but a provision that any unclaimed balance of the settlement amount reverts to the defendants shall not of itself be considered unreasonable.

(10) A collective settlement approval order may specify the time and manner by which—

(a) a represented person or class member, as the case may be, who is domiciled in the United Kingdom on the domicile date may opt out of the collective settlement; and

(b) a represented person or class member, as the case may be, who is not domiciled in the United Kingdom on the domicile date may opt in to the collective settlement.

(11) Where the Tribunal approves the collective settlement after the expiry of the period specified in the collective proceedings order in accordance with rule 80(1)(h)(ii) or (iii) within which persons may opt out or (if not domiciled in the United Kingdom) opt in to the collective proceedings, the collective settlement approval order binds all represented persons except—

(a) a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and

(b) a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.

(12) Where the Tribunal approves the collective settlement before the expiry of the period referred to in paragraph (11), the collective settlement approval order binds all class members except—

(a) a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and

(b) a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.

(13) If the Tribunal approves the proposed collective settlement, the class representative shall give notice of the terms of the settlement and its approval, in a form and manner approved by the Tribunal, to the represented persons in a case to which paragraph (11) applies, or to the class members in a case to which paragraph (12) applies, and to any other persons as the Tribunal may direct.

(14) If one or more of the represented persons or class members are to be omitted from the collective settlement, the Tribunal may permit the proceedings to continue as one or more claims between different parties and for that purpose—

(a) order the addition, removal or substitution of parties;

(b) order the amendment of the collective proceedings claim form; or

(15) If the Tribunal does not approve the proposed collective settlement, the application for a collective settlement approval order and the terms of the proposed collective settlement may not be relied on at the trial of the collective proceedings, unless all the parties to that application agree in writing.

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Where a collective proceedings order has been made and the Tribunal has specified that the proceedings are opt-in collective proceedings, the class representative may not without the permission of the Tribunal settle those proceedings before the expiry of the time specified in the collective proceedings order as the time by which a class member may without the permission of the Tribunal opt in to those proceedings.

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(1) An application for a collective settlement order shall be made to the Tribunal by—

(a) a person who proposes to be the settlement representative in relation to the collective settlement; and

(b) the person who, if collective proceedings were brought in respect of the claims would be a defendant in those proceedings (or where more than one person would be a defendant in those proceedings, such of those persons as wish to be bound by the proposed collective settlement).

(2) The application for a collective settlement order referred to in paragraph (1) shall—

(a) identify the proposed settlement representative;

(b) provide a summary of the basis on which the proposed settlement representative seeks to be authorised to act in that capacity in accordance with paragraphs (9) to (11);

(c) identify the person or persons who would be a defendant or defendants in collective proceedings and who it is proposed will be parties to the collective settlement;

(d) provide a description of the proposed settlement class;

(e) provide an estimate of the number of class members and the basis for that estimate;

(f) provide details of the claims to be settled by the proposed collective settlement;

(g) provide a summary of the basis on which the claims, if they had been made in collective proceedings, would satisfy the requirements of rule 79; and

(h) annex—

(i) a draft collective settlement order;

(ii) a draft of the summary referred to in paragraph (5); and

(iii) a draft of the notice referred to in paragraph (15).

(3) Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement order shall be accompanied by five copies of the application and its annexes certified by the proposed settlement representative or its legal representative as conforming to the original.

Response to an application for a collective settlement order 4 On receiving an application for a collective settlement order, the Tribunal may give any directions it thinks fit, including for the hearing of the application. 5 The Registrar shall publish a summary of the application for a collective settlement order on the Tribunal website.

Determination of the application for a collective settlement order 6 The Tribunal may make a collective settlement order only— a if it considers that the person who proposes to be the settlement representative is a person who, if the order were made, the Tribunal could authorise to act as the settlement representative in relation to the collective settlement in accordance with paragraphs (9) to (11); and b in respect of claims which, if collective proceedings were brought, would be eligible for inclusion in such proceedings in accordance with rule 79. 7 At the hearing of the application for a collective settlement order, the Tribunal may make— a a collective settlement order; and b any other order or give any other directions as it considers appropriate. 8 Any member of the proposed settlement class may apply to make submissions either in writing or orally at the hearing of the application for a collective settlement order. 9 The Tribunal may authorise a person to act as the settlement representative only if it considers that it is just and reasonable. 10 In determining whether it is just and reasonable for a person to act as the settlement representative, the Tribunal shall consider whether that person— a would fairly and adequately act in the interests of the class members; and b does not have, in relation to the common issues for the class members, a material interest that is in conflict with the interests of the class members. 11 In determining whether the proposed settlement representative would act fairly and adequately in the interests of the class members for the purposes of paragraph (10)(a), the Tribunal may take into account all the circumstances, including— a whether the proposed settlement representative is a member of the settlement class, and if so, its suitability to manage the settlement; b if the proposed representative is not a member of the settlement class, whether it is a pre-existing body and the nature and functions of that body; and c whether the proposed settlement representative has prepared a plan for the collective settlement that satisfactorily includes— i a method for notifying the class members of the fact and progress of the collective settlement; and ii where the proposed collective settlement involves payment of an aggregate amount, a procedure for determination of claims by class members to be paid out of that amount that takes into account the size and nature of the settlement class.

The collective settlement order 12 A collective settlement order shall authorise the settlement representative to continue to act in relation to the collective settlement and shall— a state the name and address of the settlement representative; b state the name of each party to the collective settlement who would be a defendant had collective proceedings been brought; c describe or otherwise identify the settlement class; d describe or otherwise identify the claims to be settled by the collective settlement; e specify the domicile date; and f order the publication of a notice to class members in accordance with paragraph (15). 13 A collective settlement order may include any other provision the Tribunal considers appropriate. 14 In describing or otherwise identifying the settlement class for the purposes of paragraph (12)(c), it is not necessary for the order to name or specify the number of the class members.

Notice of the collective settlement order 15 The settlement representative shall give notice of the collective settlement order to class members in a form and manner approved by the Tribunal. 16 The notice referred to in paragraph (15) shall— a incorporate or have annexed to it the collective settlement order; b contain a summary in easily understood language of the claims to be settled by the collective settlement; c include a statement explaining that the subsequent making of a collective settlement approval order will bind— i a class member domiciled in the United Kingdom on the domicile date who does not opt out of the collective settlement; and ii a class member who is not domiciled in the United Kingdom on the domicile date who opts in to the collective settlement; and d give such other information as the Tribunal directs.

Variation or revocation of the collective settlement order 17 The Tribunal may, either of its own initiative or on the application of a class member or party, make an order for the variation or revocation of the collective settlement order.

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(1) Where the Tribunal has made a collective settlement order, an application for a collective settlement approval order shall be made to the Tribunal by—

(a) the settlement representative; and

(b) the person who, if collective proceedings were brought in respect of the claims, would be a defendant in those proceedings or, where more than one person would be a defendant in those proceedings, such of those persons as wish to be bound by the proposed collective settlement.

(2) The application referred to in paragraph (1) shall—

(a) provide details of the claims to be settled by the proposed collective settlement;

(b) set out the terms of the proposed collective settlement, including any related provisions as to the payment of costs, fees and disbursements;

(c) contain a statement that the applicants believe that the terms of the proposed settlement are just and reasonable, supported by evidence which may include any report by an independent expert or any opinion of the applicants' legal representatives as to the merits of the collective settlement;

(d) specify how any sums received under the collective settlement are to be paid and distributed;

(e) have annexed to it a draft collective settlement approval order; and

(f) set out the form and manner by which the settlement representative proposes to give notice of the application to members of the settlement class.

(3) Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement approval order shall be accompanied by five copies of the order and its annexes certified by the class representative or its legal representative as conforming to the original.

(4) On receiving an application for a collective settlement approval order, the Tribunal may give any directions it thinks fit, including—

(a) for the confidential treatment of any part of an application for a collective settlement approval order;

(b) for the giving of or dispensing with the notice referred to in paragraph (2)(f);

(d) for the hearing of the application.

(5) Any member of the proposed settlement class may apply to make submissions in writing or orally at the hearing of the application for a collective settlement approval order.

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