Henderson: Who is benefitting from all of this litigation?
There were more than 655m class members of actions in the Competition Appeal Tribunal (CAT) at the end of 2024 – equivalent to 10.4 class actions for every person in the country – according to new research.
The cumulative value of UK class actions overall increased by 10% to over £134bn last year, although the number of new actions filed fell to 33, from 39 in 2023 and 74 in 2020.
Class actions are made up of collective actions in the CAT, representative actions, group litigation orders and omnibus claims forms.
For the first time the values of opt-in and opt-out class actions were roughly equal, with opt-in actions narrowly ahead.
In its European Class Action Report 2025, City law firm CMS said growth in the total opt-out value had largely been due to CAT actions.
The opt-out total was almost level with opt-ins and “will likely overtake it next year”; opt-ins spiked in 2018 with the Mariana Dam litigation, the largest group action in the UK, arising from the collapse of a dam in Brazil.
In 2016, there were 46m class members in two CAT actions, with a value of £10bn – this would mainly have been the recently settled Merricks v Mastercard case.
At the end of last year, there were more than 655m class members of CAT claims cumulatively worth £95bn. There have been 56 brought since the new regime went live in 2015, of which two have been withdrawn and 20 consolidated with other claims, leaving 34 ‘live’ claims.
All are backed by a third-party litigation funder, with Bench Walk Advisers the most active, with 13 cases worth around £13bn, but Burford Capital handling the biggest ones – the four cases it is funding, all involving ‘Big Tech’, are worth £30bn.
Innsworth Capital is second on volume (nine cases worth £10bn) and Fortress Investment Group second on value (£15bn).
CMS – which comes from a defendant perspective – said England and Wales was the second largest third-party litigation funding market in the world. “This trend is expected to continue with anticipated growth of 8.7% per annum over five years, enlarging the market from £2.2bn in 2023 to £3.7bn by 2028.”
The report said that despite the lower number of new actions last year, England and Wales accounted for just over a third of claims issued in Europe, followed by Portugal with 27%, well ahead of the Netherlands with 9%.
The total number of class action claims issued in Europe fell last year, from 128 to 97. Of the 97, 53 were opt-in and 44 opt-out, unlike the year before when a slender majority of claims were opt-out.
According to a class action ‘risk map’, the lowest risk countries were France, Ukraine, Switzerland, Croatia, Montenegro and North Macedonia.
In the UK, the three industry sectors most likely to be the subject of class actions were natural resources and energy, with just over £41bn of claims, Big Tech with £32bn and financial products with £25bn.
Researchers said natural resources was “most exposed” because of the Mariana Dam litigation.
For the first time, the data separated out claims specifically against ‘Big Tech’ and other tech industry defendants – the value of claims against the former was many times that of the latter.
Outside the UK, the picture in terms of industry sectors was very different. In Portugal, by far the biggest category of claims involved the aviation industry, followed by financial institutions and telecoms. In the Netherlands the most popular target for claims was Big Tech, followed by ‘other tech’, and after that the government.
Kenny Henderson, partner at CMS, described the 655m figure as “extraordinary”.
He continued: “The claims seek hundreds of millions of pounds, sometimes billions. Big Tech is targeted but so are other sectors such as financial services and utility providers such as water companies and train operators in the South-East. Any large corporate operating in the UK needs to take note: this is a real risk.
“A big question is who is benefitting from all of this litigation. We are now seeing some early settlements, and it is expected that very low portions of settlements will go to the class members, sometimes 5% and lower.”
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