Which? Response to Law Commission Consumer Class Actions Questionnaire

As a not-for-profit charity that exists to advance UK consumer’s interests and reduce consumer harm, Which? has been a long term advocate for the introduction of a consumer class actions regime. Indeed, Which? contributed to the Civil Justice Council’s (CJC) work that resulted in its 2008 report and recommendation for the implementation of a generic collective actions regime. We were a key proponent for the introduction of the opt-out competition collective action regime (which we refer to as the competition regime) in 2015, having been the only entity authorised to bring claims under the predecessor opt-in regime. Since 2015, we have also been a participant in the competition regime, having been certified to act as class representative (CR) in Consumers’ Association v Qualcomm  (which settled post-trial) and are the CR in Consumers’ Association v Apple. Which? was also a driving force behind consumer law reform in the Digital Markets Competition and Consumers Act 2024 (DMCCA), as well as in other areas like the Online Safety Act 2023 and the Product Regulation and Metrology Act 2025. More recently, Which? has been engaging with the Department of Business, Innovation, Science and Trade (DBIST) on its competition collective actions consultation.

Through these experiences and our engagement with consumers, business and policy makers more generally, Which? has expertise and a unique perspective from which to support the Law Commission’s project. Drawing on that experience, Which?’s response to the Questionnaire highlights: 

• The scale of consumer harm: The scale of harm suffered annually by UK consumers is astonishing, quantified most recently by the 2024 Consumer Detriment Survey at £71.2 billion. All too often this harm goes unaddressed. Current mechanisms of public and private enforcement are insufficient or ineffectual at ensuring compliance and delivering redress when harm is suffered.
• Multiple benefits of a consumer class actions regime: We think potential benefits are clear, and that these form the principles around which the regime should be designed and implemented, being:
  • Increased access to justice. 
  • A more efficient mechanism for redress where large groups of consumers have suffered the same or similar harms (compared to existing routes for consumers to enforce their rights, whether individually or on a group basis). 
  • Promotes compliance with consumer law and deters infringements. 
  • Complements regulators’ work (public enforcement).
  • Supports better functioning and fairer markets, benefiting consumers and businesses.
• Risks associated with a consumer class actions regime can be managed, and in any event do not outweigh the benefits: Which? is alive to the risks of a consumer class actions regime, including that it should not unduly burden law-abiding businesses with spurious or speculative claims. Through careful design and implementation, risks can be managed. But in any event, risks need to be weighed against the perverse outcome that absent enforcement, businesses who infringe consumer law are likely to retain the benefits of the infringements. 
• Careful regime design is required: A consumer class actions regime should not simply extend or replicate the competition regime, though much can be learnt from experiences with the competition regime. Guided by the principles on which a consumer class actions regime should be based, the design should: 
  • Define scope through an adaptable statutory schedule: Use a defined legislative schedule of in-scope consumer infringements supplemented by an executive power to update the list via secondary legislation and a mandatory implementation review clause. 
  • Reflect the full spectrum of consumer harms: Encompass broad causes of action such unfair commercial practices, product liability, Consumer Rights Act goods and services and tort claims (aligning with mature class action frameworks in Australia and Canada), while accommodating both follow-on and vital stand-alone claims to plug the significant enforcement gap. 
  • Adopt a rebuttable presumption of opt-out: Recognise that consumer claims - unlike mixed business/sophisticated class claims in the competition regime - involve dispersed, low value losses that make an opt-in approach impracticable and likely exclusionary. 
  • Empower a diverse pool of class representatives: Ensure varied consumer champions can step forward, while applying clear and effective authorisation requirements to confirm representatives and their legal advisers have the requisite capability and resources.
  • Statutorily embed aggregate damages: Provide an express statutory provision to award aggregate damages without requiring individual assessment of loss, therefore overcoming existing barriers in common law representative actions.
  • Drive down litigation costs and rebalance structural asymmetries: Lower the cost of proceedings through greater use of cost control powers such as fixed or capped costs and strict judicial oversight; establishing early judicial guidance on ATE adequacy and sanctions against parties for attrition tactics; and allowing for percentage-based litigation funding and Damages Based Agreements (DBAs) to help make moderate-value claims commercially viable. 
  • Mandate defendant cooperation on distribution and adapt to real-world uptake: Establish clear legal obligations requiring defendants to actively facilitate distribution, including by using their own customer records, account data, etc where possible; provide procedural flexibility so that distribution strategies can reflect case-specific market dynamics rather than rigid uptake targets; and utilise merging empirical data from ongoing distributions in claims on foot in the Competition Appeals Tribunal (Tribunal) to establish an evidence-based approach from the outset. 
  • Cy-près distribution and broader public interest objectives: Ensure certification and settlement assessments factor in the full range of benefits, including indirect consumer benefits, deterrent effects, and the future value of better functioning and fairer markets, rather than narrow direct take-up estimates alone.
  • Prevent speculative and unmeritorious claims through proportionate judicial gatekeeping without encouraging mini-trials: Implement robust safeguards to protect against the risk of spurious or speculative claims that are without merit, including: an early certification/admissibility filter focused on CR competence and suitability of the claim (but avoiding a merits mini-trial); strict judicial oversight of funding and adverse costs insurance to eliminate improper funder control and conflicts of interest; mandatory judicial approval of settlements or discontinuance to verify terms are just and reasonable for absent class members; and active case management to resolve strategic threshold challenges early. 
  • Ensure adequate forum resourcing and judicial specialisation: Situate the regime within an adequately resourced court (such as the specialised list within the High Court King’s Bench Division) with dedicated case management tools and processes to prevent backlogs and judicial overstretch.

Which? looks forward to working with Government, the Law Commission and stakeholders on this important and impactful project.