CAT adopts contrasting approaches to consistency in overlapping class actions

In two pairs of overlapping class actions against big tech firms, the Competition Appeal Tribunal has adopted two different approaches to ensuring consistency of outcome.

In Ennis v Apple, Dr Ennis is suing Apple on behalf of UK iOS app developers in respect of the allegedly abusive prices that Apple imposes on those developers. Ennis is related to another case, called Kent, in which Dr Kent is suing Apple in respect of similar alleged abuses, but on behalf of UK consumers. Thus, Ennis is a direct purchaser case, and Kent is an indirect purchaser case.

In Rodger v Alphabet, Prof Rodger is suing Google on behalf of UK Android app developers in respect of Google’s allegedly exclusionary conduct and the allegedly abusive prices that Google imposes on developers. Like Ennis, Rodger is a direct purchaser case, and exists alongside an indirect purchaser case, called Coll.

Both pairs of cases (i.e., (i) Kent and Ennis and (ii) Coll and Rodger) overlap in their subject-matter. Therefore, one can see the attraction in trying Kent and Ennis together and trying Coll and Rodger together: to do otherwise entails duplication of effort and the possibility of inconsistent outcomes—which the Tribunal has said in the past it is keen to avoid.

In these cases, though, complexities arose because Kent and Coll were issued in 2021, but Ennis was issued in 2023, and Rodger was issued in 2024. Thus, the direct purchaser cases were significantly behind the indirect purchaser cases.

In Ennis, the matter came before the Tribunal in September 2024. By that time, the trial in Kent had been listed for January 2025. Dr Ennis and Apple argued that the Tribunal should adjourn that trial to allow Dr Ennis’s case to catch up, and to allow for a joint trial of both Kent and Ennis. The Tribunal disagreed, and held that, although ensuring consistency of outcome was a good thing, it did not justify an adjournment in Kent on the eve of trial. The result is that there is now a chance that Kent and Ennis may produce different outcomes.

In Rodger, the matter came before the Tribunal in March 2025. By that time, the trial in Coll had been listed for October 2025. Prof Rodger and Google argued that the Tribunal should adjourn that trial, in order to allow Prof Rodger’s case to catch up, and to allow for a joint trial of both Coll and Rodger. This time, the Tribunal did order an adjournment. The result is that inconsistency of outcome between Coll and Rodger will be avoided.

In Rodger, the Tribunal pointed to what it regarded as significant differences between that case and Ennis. For example:
• In Rodger, there was a fourth party. Epic, the well-known developer of the game Fortnite, was also suing Google in respect of similar alleged abuses. Epic supported the argument that the October 2025 trial should be adjourned.
• In Rodger, there were seven months until the indirect purchaser trial, whereas in Ennis there were only four.
• In Rodger, Prof Rodger and Epic offered Ms Coll an indemnity designed to cover costs incurred as a result of the consolidation.

Daniel Carall-Green and Victoria Green, led by Robert O’Donoghue KC of Brick Court Chambers and instructed by Geradin Partners, appeared for Dr Ennis.

Daniel Carall-Green and Bethanie Chambers of XXIV Old Buildings, led by Robert O’Donoghue KC of Brick Court Chambers and instructed by Geradin Partners, appeared for Prof Rodger.

The judgment in Ennis can be found here.

The judgment in Rodger can be found here.