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Daniel Carall-Green, instructed by Scott+Scott, and led by Robert O’Donoghue KC of Brick Court Chambers, acted for Dr Sean Ennis in successfully resisting Apple’s application to decertify the opt-out collective proceedings order in Dr Ennis’s case. Victoria Green and Sam Hussaini are also acting for Dr Ennis in the proceedings.
As explained in the previous post here, Dr Ennis’s case is that app developers have paid excessive and unfair prices in the form of Apple’s commission on sales made via the App Store.
As explained here, in 2024, the Competition Appeal Tribunal certified Dr Ennis’s case on an opt-out basis. Following the Supreme Court’s judgment in Evans, Apple applied to have Dr Ennis’s case decertified. Apple’s chief argument was that the value of the claims in Dr Ennis’s case was concentrated among a small number of class members, so that – applying Evans – the case was not appropriate for opt-out proceedings.
The application was argued at a hearing on 22 April 2026. The Competition Appeal Tribunal refused Apple’s application. Among the Tribunal’s reasons were the following:
(1) Evans was a case where “the Tribunal had held the claim was so intrinsically weak that it failed the strike out test”. The same could not be said of Dr Ennis’s claims, which “contrast markedly with the claims which were before the Supreme Court in Evans”. In fact, the claims were “relatively, even unusually, strong”.
(2) In Dr Ennis’s case, there was “a very large number of smaller claims which could not realistically be pursued other than on an opt-out basis”. Although some claims with Dr Ennis’s class were larger, Apple declined to identify where it would “place the line between the sub-class of claims which could be pursued on an opt-in basis and the sub-class which could only be pursued on an opt-out basis”. This suggested that there was “no obvious point at which the line could be drawn”.
(3) There was before the Tribunal “substantial evidence of concerns being expressed in the public domain about retaliation, or the risk of retaliation, by the Defendants against developers who challenge them”. The Tribunal made no finding about whether those concerns were well-founded, but it said, “the very fact that such concerns have been expressed in the public domain, and the apparent prevalence of such concerns, is a feature of the environment (in our view, an objective feature of the environment) which is capable of affecting the behaviour of reasonable developers, whether large or small, and which bears on the practicability of opt-in proceedings being brought by members of the class as a whole”.
(4) The class was homogeneous, and there was “no obvious distinction to be drawn between the various claims, other than by reference to their size”.
(5) On the evidence, “the likely consequence of decertification would be that these proceedings would come to an end”.
(6) Opt-out proceedings did not impose “an unfair litigation burden on Apple” or confer “an unfair litigation advantage” on the class.
This is the second judgment on an application in which defendants have sought to have collective proceedings orders varied or revoked on the basis of Evans. The first was the judgment in Rodger – in which Daniel also appeared for the successful class representative (as explained further here). However, the Ennis application was heard first (and decided after Rodger).
The Ennis judgment can be found here.
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