Herbert Smith has created a graphic that tracks the number of competition class actions filed at the Competition Appeal Tribunal since the introduction of a new opt-out regime in the UK in October 2015, as well as the certification status of those applications and certain key details about the nature of the claims.

As the graphic demonstrates, the regime was not especially active in the first few years of its operation. The failure of Gibson (the first CPO application) to proceed past certification, and the CAT’s initially rigorous approach to certification in Merricks may have discouraged some applications. Moreover, those further cases that had been brought were effectively frozen whilst the Merricks case was under appeal, with a number of applications adjourned (formally or informally) pending the judgment of the Supreme Court.

When it then arrived, the Supreme Court’s judgment in Merricks was a turning point. Its clarification of elements of the certification test has set a low bar for certification and has been seen as mandating a more permissive approach to certification. Not only did that judgment unlock the regime and allow the existing applications to proceed (and in many cases, to be certified), it has arguably led to a material number of further CPO applications to be issued, many of which have already been certified by the CAT.