File first, fund later? The CAT’s guidance on filing collective proceedings before funding and insurance are finalised

The Competition Appeal Tribunal’s (“CAT”) recent decisions in Sciallis v Fender [2026] CAT 56 and JLP TCR Ltd v Scania [2026] CAT 59 clarify an important practical question for proposed class representatives (“PCRs”): must litigation funding and after-the-event (“ATE”) insurance cover be fully finalised before a collective proceedings claim form is filed?

The short answer is: not necessarily. For example, where limitation is about to expire, filing may be necessary to preserve the claim. But an unfunded and uninsured filing is an exceptional and temporary measure. The Tribunal stressed that such a filing must be accompanied by full candour, a credible route to completed funding and ATE cover, and controls which prevent defendants from incurring material costs in the meantime.

Adequate funding and ATE insurance are essential to bringing collective proceedings

In Sciallis, the CAT emphasised that scrutiny of funding is an “essential and central” safeguard within the collective proceedings regime. Funding must enable the proceedings to be conducted effectively, while adverse-costs arrangements must provide appropriate protection if the defendants succeed. In those proceedings, Ms Sciallis filed five collective proceedings claim forms in 2022 and 2023 without having secured litigation funding. By 2026, she had ATE insurance in place, but still no litigation funding.

While the ordinary course is to finalise funding before filing, the CAT nevertheless recognised that this may not always be possible. Where a PCR files a collective proceedings claim form prior to the finalisation of its funding arrangements, the PCR must explain candidly how far negotiations have progressed, why they were not completed before filing and how much more time is needed.

The CAT may allow a reasonable period to conclude funding, but it will not postpone the question without limit. If no satisfactory arrangements are secured within the permitted period, the claim may be summarily dismissed.

Costs must be controlled

The corollary is that a defendant should not be required to take steps incurring material costs before the PCR has confirmed that funding is concluded and produced the documents required for scrutiny.

Filing and service can trigger significant expenditure. Where funding remains incomplete, the PCR should invite directions holding the procedural position, specifying what work is expected and minimising avoidable costs.

Sciallis also confirms that candour is a continuing duty. A material change relevant to the claim must be brought promptly to the CAT’s attention. While this does not require a running commentary, it does require clear notice when the factual basis on which the claim was presented has materially changed, such as where funding negotiations have fallen through.

JLP TCR Ltd v Scania: a short bridge in practice

JLP TCR Ltd v Scania illustrates how the exception can operate. JLP TCR Ltd filed its collective proceedings claim form on 30 January 2026, immediately before its asserted limitation deadline, while funding and insurance remained incomplete. Its evidence identified the deadline, acknowledged that completed arrangements would have been preferable, explained why that had not been achieved and promised prompt updates.

Haulage Customer Claim Ltd (“HCCL”) faced the same issue. It filed a materially similar claim on 29 January 2026, two days before its asserted limitation deadline, with an agreed but conditional funding agreement and incomplete insurance. The two PCRs later avoided a carriage dispute by pursuing the claims through an amended JLP TCR Ltd claim and staying HCCL’s claim.

The lacuna in JLP TCR Ltd v Scania was managed as a short bridge in practice. JLP TCR Ltd said that it would not serve until funding and insurance were in place, updated the CAT and asked the proposed defendants not to incur costs in the meantime.

By the July 2026 hearing for permission to serve out on the foreign Scania defendants, a litigation funding agreement had been executed and ATE insurance arrangements had been identified, although certain conditions precedent and a priorities agreement remained outstanding. In line with Sciallis, the CAT noted that it must be fully apprised of the funding and insurance position when applications to serve out are made. The CAT ultimately permitted service out subject to a firm safeguard: completion of the remaining funding requirements had to be confirmed by witness statement, failing which permission could be revoked after 17 August 2026.

Practical lessons for PCRs

The upshot of the two judgments is that an unfunded or uninsured filing needs evidence to support it: a PCR should explain why filing cannot safely wait; describe the funding and insurance position accurately – distinguishing an executed agreement, conditional terms, an agreement in principle and a continuing funder or insurer search – and propose a short timetable with dated milestones. It should also invite the CAT to control service and other steps so that defendants do not incur material costs before funding and adverse-costs protection can be scrutinised.

After filing, any material deterioration in the funding or insurance position should be disclosed promptly, even while alternatives are pursued. A PCR should expect a hard stop: if arrangements are not completed, the CAT may dismiss the claim or revoke a procedural permission.