On 6 May 2022, the Court of Appeal ruled on an appeal of BT Group[1] against the CAT’s 27 September 2021 judgement by which it certified Le Patourel’s proposed damages claim as eligible for collective (class) proceedings upon an opt-out basis.[2] Le Patourel, as second class representative, alleges that BT Group has abused its dominant position in the market for voice only telephony by charging customers supra-competitive prices to customers.

BT Group appealed to the certification of the proposed claim and argued that if the claim were to be certified, it should proceed upon an opt-in basis, instead of opt-out. Opt-in would require any person wishing to benefit from the claims to, deliberately, join the claim at the outset. An opt-out claim, on the other hand, automatically includes all members of a defined class except those that choose to opt-out. The reason the CAT deciding on opt-out had to do with the fact that customers of voice-only services are often elderly and vulnerable and would not easily be inspired to sign up also given the limited award in the end (around 140 pounds).

BT Group argued in an appeal however, that the applicable rules expressed a general preference for opt-in “where practicable”. According to BT Group, it would be practicable to get the proposed class to opt-in because it would be possible to identify and contact BT customers based on customer records held by BT.

The Court of Appeal dismissed the appeal. Later, the court will further rule on whether to grant BT permission to submit an appeal against the CAT’s certification of the claim.

[1] The entities summoned are BT Group PLC and British Telecommunications PLC.

[2] Court of Appeal (Civil Division), [2022] EWCA Civ 593, Case No: CA-2021-000748 (formerly C3/2021/1632).