Professor Andreas Stephan v Amazon.Com, Inc & Ors

In collective proceedings, the CAT has broad supervisory discretion over class-representative suitability and litigation funding. It may defer detailed scrutiny of a potentially high funder’s return at certification after considering the evidence, funding terms and possible delay. There is no default rule that scrutiny must await judgment or settlement, or that earlier scrutiny requires exceptional circumstances. Potential conflicts between class members must be assessed realistically on the evidence. The CAT may revisit the issue as evidence develops and may use structural safeguards. Appeals against such evaluative decisions face a high hurdle. Policy importance alone does not provide a compelling reason for permission where the proposed grounds have no real prospect of success.

Amazon sought permission to appeal two collective proceedings orders made by the Competition Appeal Tribunal in claims alleging abuse of dominance in relation to Amazon’s online store, contrary to the Competition Act 1998 and, for an earlier period, article 102 TFEU. The first application concerned whether Robert Hammond’s litigation funding agreement gave the funder an unreasonable potential return. The second concerned an alleged conflict between sellers using Amazon fulfilment and sellers using their own delivery arrangements. The CAT’s decision was reported at [2025] CAT 42. The central questions were whether either proposed appeal had a real prospect of success or raised a compelling reason for an appeal.

The court refused permission to appeal in both applications.

1. Hammond claim. Under the Competition Appeal Tribunal Rules 2015, the CAT’s decision whether it is just and reasonable to authorise a class representative is a broad evaluative judgment. An appeal against the exercise of the CAT’s wide case-management powers faces a particularly high hurdle. The CAT’s finding that £15 million of ATE cover was sufficient for adverse costs was not challenged.
2. Funding supervision. The CAT is not bound by the funding agreement actually reached. As explained in Gutmann v Apple Inc [2025] EWCA Civ 459, it has broad powers to review a funder’s return at any stage and to assess whether it is reasonable in all the circumstances. Gutmann did not establish a default rule requiring that question to be postponed until the end of proceedings. Its reference to distribution concerned the particular facts and remained subject to CAT supervision. The CAT also had regard to the possibility of reducing a funder’s return after a poor result, illustrated by Merricks v Mastercard, Inc [2025] CAT 28.
3. A potentially excessive return was relevant because it might create conflicting settlement incentives. The decisive question was whether the funding agreement adequately protected the class, which the CAT addressed. The CAT was entitled to defer a final assessment after considering privileged-information limits, the evidence, delay and the circumstances in which the agreement was made. Its approach was neither an impermissible default rule nor irrational. A return cannot be fixed by reference to damages recovered: R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28; [2023] 1 WLR 2594.
4. Stephan claim. The alleged conflict between FBA and FBM sellers was assessed on the evidence. Aggregate damages principally concerned increased fulfilment and marketplace fees, where losses on diverted sales would generally be counterbalanced by gains elsewhere. The evidence indicated that FBA overcharges substantially outweighed profits on diverted sales. The CAT was therefore entitled to find no realistic conflict disabling the class representative from advancing the claim for the whole class.
5. If later evidence created a genuine conflict, the CAT could revisit the issue under its continuing supervisory role. Separate legal teams, experts or funding might be used, as contemplated in UK Trucks Claim Ltd v Stellantis [2023] EWCA Civ 875. The reference to a direct conflict in that case described the obvious factual conflict there; it did not establish two legally distinct categories of conflict.
6. Policy questions about collective-action funding did not provide a compelling reason to hear either appeal where the proposed grounds had no real prospect of success.

1. Court of Appeal (Civil Division) — refused Amazon’s applications for permission to appeal against both collective proceedings orders.
2. Competition Appeal Tribunal — made the collective proceedings orders in the two claims: [2025] CAT 42.
3. Earlier carriage proceedings — the CAT determined the carriage issues in the Hammond claim at [2024] CAT 8 and in the Stephan claim at [2025] CAT 6; permission to appeal those decisions was refused.