The PCR's "heavy responsibility": CAT Judgment in Riefa v Apple and Amazon emphasizes the high standards expected of a PCR

Summary 

The Competition Appeal Tribunal (the Tribunal) recently handed down an important judgment, refusing to certify the proposed collective proceedings in Christine Riefa Class Representative v Apple Inc. & Amazon.com, Inc.¹ After two certification hearings, the Tribunal was not satisfied that it would be just and reasonable for the Proposed Class Representative (the PCR) to bring the proceedings following concerns relating to Professor Riefa's understanding of the PCR's funding arrangements. The judgment reiterates the strict requirements and high standards expected of a PCR. 

Background 

The PCR, Christine Riefa Class Representative Limited, is a special purpose vehicle incorporated for the purpose of the proposed claim. The sole member and director of the PCR is Professor Christine Riefa, a Professor at the University of Reading. 

The PCR's claim centred around alleged anti-completive agreements between Apple and Amazon. The PCR alleged that these agreements led to inflated prices for Apple products sold in the UK, by limiting the number of UK resellers of Apple products on Amazon. The PCR alleged that this resulted in a loss to proposed class members, through the payment of an overcharge on Apple products purchased through Amazon UK, Apple's UK website and other retail channels. The proceedings were brought in the form of an opt-out collective proceedings against the proposed defendants in July 2023.

During the first certification hearing in July 2024, the Tribunal identified concerns relating to the PCR's funding arrangements. Specifically, the Tribunal's concerns related to confidentiality provisions and provisions relating to the priority of payment following a successful outcome. The PCR was therefore provided with the opportunity to file further evidence and amend its claim form and/or funding arrangements before a further certification hearing. The proposed defendants also applied for and were granted permission to cross-examine the PCR at the second certification hearing, which took place in September 2024. 

Legal framework 

The relevant framework setting out the requirements for the Tribunal to make a collective proceedings order (CPO) can be found at Section 47B of the Competition Act 1998 and Rule 77 of the Competition Appeal Tribunal Rules 2015. The requirements are as follows. 

1. The authorisation condition: The Tribunal must be satisfied that it is "just and reasonable" for the PCR to act as representative in the proceedings. The Tribunal must consider whether the PCR would "fairly and adequately act in the interests of the class members". This includes consideration of the PCR's "suitability to manage the proceedings" and the adequacy of the proposed funding arrangements.
2. The eligibility condition: The claims must be eligible for inclusion in collective proceedings. Specifically: (i) the claims must be brought on behalf of an identifiable class of persons; (ii) the proposed claim must raise common issues; (iii) the proposed claim must be suitable to be brought in collective proceedings².

Decision

During the second certification hearing, the Tribunal identified concerns about Professor Riefa's understanding of the terms of the PCR's funding arrangements. Those concerns centred on the fact that the litigation funding agreement (the LFA) included a success fee calculated on the basis of an uncapped multiple of the funder's costs, and an unqualified obligation to seek an order in the event of success that fees and costs (including the success fee) be paid ahead of any payment to the class. The Tribunal (chaired by Mrs Justice Bacon) was concerned both with the substance of the LFA – which appeared "inimical to the interests of the class" – but also whether Professor Riefa had fully understood, as her evidence stated that the obligation to make such an application was limited to funds remaining after distribution to the class. 

Overall, the Tribunal's impression was that Professor Riefa was "extremely reliant on her legal advisors" and whilst the Tribunal recognised that Professor Riefa was entitled to obtain legal advice, the Tribunal was not convinced that Professor Riefa had properly understood the arrangements entered into, which in turn hindered her ability to protect the interests of the class. The Tribunal noted that it was not clear whether Professor Riefa alone had the experience or support required to fulfil the role of the PCR in a complex litigation of this kind. 

The Tribunal also found that the PCR failed to fully address the funding concerns raised by the Tribunal at the first certification hearing. In particular, the Tribunal remained concerned that the PCR would be prevented from disclosing the terms of the PCR's funding arrangements to the class under the relevant confidentiality provisions. 

The Tribunal acknowledged that it is not uncommon for a PCR to become involved in proceedings after funders have been identified by legal advisors, as was the case for Professor Riefa. However, the Tribunal made clear that a PCR "is not, and cannot be, merely a figurehead for a set of proceedings being conducted by their legal representatives". Rather, a PCR must act as an independent advocate for the class. 

The Tribunal ultimately refused the application for certification, on the basis that the PCR had failed to satisfy the authorisation condition. The Tribunal was not convinced that Professor Riefa had demonstrated sufficient independence or robustness to act in the interests of the class. The Tribunal's decision was based on a cumulative assessment of both the evidence put forward by Professor Riefa, compounded by the Tribunal's concerns with the PCR's funding arrangements. 

Comment 

 The Tribunal's judgment reiterates the strict requirements, and "heavy responsibility" placed on PCRs. Crucially, a PCR must be able to demonstrate that it acts independently in the best interests of the class. PCRs must also have a strong understanding of all issues in the case, including any funding arrangements entered into and potential implications for class members. It emphasises that where a PCR joins a case in which funding has already been arranged – which is not uncommon – the PCR must nevertheless satisfy themselves that they fully understand and are comfortable with the terms of the funding arrangements. 

Whether this marks the start of PCR's being routinely cross-examined as part of the certification process remains to be seen. In Rowntree v The Performing Right Society Limited [2025] CAT 8 the Tribunal recently, in a ruling dated 31 January 2025, refused an application by the Proposed Defendants to cross-examine the PCR on issues including his funding arrangements and distribution plan, on the basis that they were properly matters for legal argument on which cross-examination would not assist.

1. Christine Riefa Class Representative v Apple Inc. & Amazon.com, Inc. & Others (Case No. 1602/7/7/23) [2025] CAT 5.

2.CAT Guide, 6.33.