Christine Riefa v Apple [2025] CAT 5

Professor Christine Riefa applied to the Competition Appeal Tribunal for a collective proceedings order against Apple Inc, alleging that Apple had abused its dominant position in the market for the distribution of iOS apps by imposing excessive commission charges on app developers, with the overcharge being passed on to consumers. The claim was funded by Asertis Ltd, a litigation funder that had been active in supporting competition claims before the CAT. The CAT refused certification on 14 January 2025, finding that the proposed claim did not satisfy the certification criteria to the requisite standard. The Tribunal’s refusal highlighted several important points for the litigation funding market. The decision demonstrated that the CAT continues to apply rigorous scrutiny at the certification stage and that the availability of third-party funding does not, in itself, enhance the merits of a proposed claim or influence the Tribunal’s assessment of whether the certification criteria are met. Funders cannot rely on financial backing alone to secure certification.

The refusal also illustrated the significant financial risks borne by litigation funders who invest in claims at the pre-certification stage. Funders typically incur substantial costs in developing a claim to the point where a certification application can be made, including legal fees, expert evidence, and disbursements. When certification is refused, these costs are irrecoverable, representing a total loss on the investment. The Riefa decision served as a reminder that the CAT’s certification threshold, while not requiring proof of the merits on the balance of probabilities, nonetheless requires a credible and well-developed case that is suitable for collective determination. For Asertis specifically, the decision was part of a difficult period that also saw it ordered to provide security for costs in Asertis v Bloch, raising broader questions about the funder’s financial position and litigation strategy.