There’s been steady year-on -year growth in the number of CAT claims filed since 2020 and, with obstacles remaining for class actions in the High Court in many areas, it seems likely this will continue into 2024. With the emergence of novel and complex technology with extremely fast growth rates (such that market dominance can be suggested), as we are currently witnessing in the world of generative AI, there appears to be evermore targets for the claimant bar to go after. One look at the headlines about US class actions involving AI companies makes it clear that their privacy practices, in particular, are going to be claimant fodder for some time yet.
There have also been calls, unsurprisingly from claimant law firms among others, for the CAT’s remit to be widened beyond its current mandate to hear only competition-based claims. The suggestion is that breaches of consumer protection laws should also fall within the CAT’s wheelhouse, so as to provide a route to justice for consumers who’ve suffered low-level harm, en masse, but without necessarily having been the victims of an antitrust violation. Bearing in mind the raft of new consumer protection legislation and rights which are about to come into force in the UK such calls, if answered, would very likely lead to a huge influx of additional claims.
In this regard, the potential impact of the EU’s Representative Actions Directive (“RAD”) should be borne in mind. The RAD has ensured that a minimum level of collective redress is available in each and every Member State in relation to a long list of consumer protection-based laws. Whilst the UK of course has absolutely no obligation to implement any such measures, pressure on the government to do so is likely to increase if the view that the UK public is receiving a lower level of protection and redress than its EU counterpart gains ground.
Before we conclude, though, that all eyes should be on the CAT and the CAT only from now on, some of the hurdles associated with CAT litigation merit a brief examination. As claims in the CAT progress to certification stage, those bringing them are likely to encounter a number of stumbling blocks, both competition-specific and those applicable to class actions more…