Le Patourel v BT [2025] CAT 10

Following the dismissal of the Le Patourel collective proceedings on the merits in December 2024, the CAT delivered a further decision on 13 February 2025 addressing two matters: the class representative’s application for permission to appeal, and detailed costs rulings arising from the first opt-out collective proceedings to reach final judgment. On permission to appeal, the Tribunal considered whether the substantive judgment raised points of law or principle that merited appellate consideration. The costs rulings were of particular significance given the novelty of the situation. No previous opt-out collective proceedings had reached the stage of a final costs assessment following a trial on the merits, and the CAT was therefore writing on a largely blank slate. The Tribunal had to consider how standard costs principles applied in the collective proceedings context, including the interaction between adverse costs orders, the funder’s indemnity obligations, and the protection afforded to class members who had not opted out.

The costs assessment also raised questions about the reasonableness and proportionality of costs incurred in collective proceedings, where the scale and complexity of the litigation can generate substantial legal fees. The decision addressed the extent to which the funder’s backing of the claim was relevant to the assessment of proportionality, and whether the availability of funding should be treated as a factor tending to increase or decrease the level of recoverable costs. For the litigation funding industry, the Le Patourel costs decision provided the first concrete data point on the financial consequences of losing an opt-out collective proceedings claim at trial. The approximately £14 million adverse costs order, combined with the funder’s own irrecoverable investment in the proceedings, represented a significant loss and underscored the importance of rigorous case selection and risk assessment in the pre-funding due diligence process.