Who speaks for the class? The evolving rules on defendant communications with class members
The Competition Appeal Tribunal’s (“CAT”) recent judgment in Ennis v Apple adds an important chapter to the developing case law on defendants communications with class members in opt-out collective proceedings. It follows the Court of Appeal’s judgment in McLaren and the CAT’s more recent rulings in Ad Tech v Google and Rodger v Google, which have considered when defendants may seek disclosure from members of the class.
The emerging position is clear in one respect: a collective proceedings order does not create a communications firewall around class members. Defendants may approach them directly for evidence and, in appropriate cases, seek orders compelling disclosure from them. But an important distinction has emerged between voluntary evidence-gathering, which can take place without prior permission from the CAT and whose communications may attract litigation privilege vis-à-vis others, and compulsory disclosure, where the CAT will scrutinise necessity, proportionality and burden. Ennis brings the consequences of that distinction into particularly sharp focus.
McLaren: class members are represented, but not off limits
The starting point is Nippon Yusen v McLaren [2023] EWCA Civ 1471. The CAT had imposed a general restriction preventing defendants from communicating directly with members of the represented class about the proceedings without permission. The Court of Appeal rejected that approach: neither the Rules nor the nature of collective proceedings create a blanket prohibition on direct contact.[1]
Litigation privilege was central to the Court’s reasoning. Requiring a defendant to reveal proposed approaches to class members could expose how it was gathering evidence, its litigation strategy or unused material. Popplewell LJ gave the example of a potential expert who happened to be a class member. A defendant must be able to approach and assess possible experts confidentially before deciding whom to instruct, just as a class representative can.
Class members therefore occupy an unusual position: claims are advanced by the class representative on their behalf, but class membership does not itself make them parties or clients of the class representative’s solicitors. They may therefore still be approached as sources of evidence.
Ad Tech and Rodger: class members may be required to engage
Rule 89(1)(c) expressly permits disclosure to be ordered from a represented person, including in opt-out proceedings. In Ad Tech, the CAT rejected the suggestion that such an order requires truly “exceptional circumstances”. Class members instead occupy a “middle ground”: they are not parties to the proceedings, but nor are they necessarily entitled to remain entirely passive. Large commercial organisations with substantial claims and significant “skin in the game” may be expected to engage more fully than smaller class members.[2]
Rodger confirmed that the absence of an exceptional-circumstances threshold does not make disclosure automatic: requests must still be specific, reasonably necessary and proportionate. The CAT also described the class representative’s participation as an interested party in the compulsory disclosure process as “critical”, because the class representative was better placed to address both the documents sought and the wider effect on the collective proceedings.[3]
Ennis: voluntary disclosure changes the picture
Ennis concerned the step before court-ordered disclosure. Apple proposed approaching selected class members (in particular, large app developers) for voluntary disclosure, without identifying the number or identity of those it intended to approach. The class representative sought greater advance transparency and supervision. The CAT largely declined the class representative’s request.[4]Applying the Court of Appeal’s ruling in McLaren, the CAT held that Apple was entitled to pursue legitimate investigations and determine which class members it wished to approach while seeking voluntary disclosure. Requiring Apple to share the substantive requests it proposed to make, or its criteria for selecting recipients, risked invading litigation privilege by revealing its evidence-gathering strategy.
The contrast with Rodger is striking. If Apple later seeks a compulsory disclosure order, the class representative must be notified and the CAT will scrutinise the request. Before that point, however, Apple can select class members and seek voluntary disclosure without the class representative necessarily knowing who has been approached or precisely what has been requested.
The CAT nevertheless imposed safeguards. Apple must make clear that disclosure is voluntary, that no disclosure order has been made, that the class member can require a formal application and resist it, and that refusing voluntary disclosure will not affect the class member’s commercial relationship with Apple.
The litigation privilege wrinkle
The most unusual feature of Ennis concerns privilege. McLaren held that an evidence-gathering communication is not privileged as against the class member who receives it, but may remain privileged as against the rest of the class. Ennis proceeded on the basis that this protection also extends as against the class representative.[5]
Apple therefore resisted a direction sought by the class representative which would permit recipient class members to discuss Apple’s requests with the class representative or his lawyers, arguing that this would amount to a waiver of Apple’s litigation privilege. While the CAT required Apple to provide the contact details of the class representative’s lawyers, it declined to give the class representative’s requested permission. The contact details were therefore intended to help class members obtain information about the proceedings generally, rather than advice on Apple’s requests themselves.
Litigation privilege does not itself impose a freestanding duty of confidentiality on the recipient. In Ennis, however, the CAT’s subsequent Order expressly provides that a class member “may not discuss the contents of any confidential and/or legally privileged Disclosure Communication” with the class representative or his lawyers.[6]
Taking a step back, this becomes particularly awkward if a class member approaches the class representative for information about the proceedings but is unable, or unwilling without separate advice, to share the voluntary disclosure request that prompted the approach. The class representative may know, or infer, that the defendant has made contact without being able to assess the scope, consistency or significance of what has been sought. If the class member nevertheless shares the voluntary disclosure request, the class representative faces the further difficulty of determining how they may handle any material potentially subject to the defendant’s litigation privilege and/or a confidentiality order.
What does cooperation require?
Apple foreshadowed its proposed outreach to the class representative and the CAT, which the CAT said was proper pursuant to the parties’ duty of cooperation under Rule 4(7). McLaren had already identified cooperative consultation as a possible starting point for class communications by defendants, without imposing a general duty of advance notification.[7] Ennis likewise does not require defendants to obtain permission before seeking voluntary disclosure or to identify the intended recipients or requests in advance.[8] This leaves the practicalIt is worth recalling that the communications which triggered McLaren did not themselves seek disclosure: shortly before the opt-out deadline, they warned selected large class members that remaining in the class was likely to expose them to a potentially burdensome disclosure exercise and document-preservation obligations. The CAT considered that those letters cut across the benefits of opt-out collective proceedings; the Court of Appeal did not disturb that assessment, but expressly declined to rule on their propriety when holding that the Rules imposed no blanket prohibition on direct communications.[9] Ennis now takes the issue a step further, by permitting defendants, subject to safeguards, to approach class members directly for the voluntary disclosure itself.
Where does this leave opt-out collective proceedings?
The authorities now draw an important distinction between voluntary and compulsory engagement with class members. Defendants do not need permission simply to seek disclosure voluntarily, although the CAT retains its case management powers to intervene where the circumstances justify it. The practical difficulty is that, without clearer guidance on what cooperation under Rule 4(7) requires, neither the CAT nor the class representative may know that communications are taking place, what is being requested or how the exchanges are progressing, making effective supervision difficult.
Where compulsory disclosure is sought, by contrast, the request must be justified as specific, necessary and proportionate, and the class representative should ordinarily be involved as an interested party.
That distinction exposes a structural tension in the opt-out collective proceedings regime once claims are certified. Class members are represented for the conduct of their claims, but that status does not insulate them from direct approaches by defendants or necessarily enable them to discuss those approaches with the lawyers conducting the proceedings on their behalf. As the CAT observed in Ennis, absent legislation placing post-certification voluntary disclosure requests under CAT control, the Court of Appeal ruling in McLaren establishes that such approaches are generally legitimate.
Whether that balance proves workable in practice remains to be seen. From a claimant perspective, the consequences could be significant. Large commercial class members may be drawn into bilateral exchanges with the defendant, incur their own legal costs and face disclosure decisions outside the collective structure. While the CAT declined to infer improper pressure by Apple in Ennis, [10] such exchanges may nevertheless create practical pressure to leave the class, particularly where engagement with the defendant is commercially sensitive.
More fundamentally, the jurisprudence risks undermining the efficiencies of opt-out collective proceedings. Class members may need advice on commercially sensitive requests, yet be prevented from discussing them with the very lawyers conducting the proceedings on their behalf. Having to obtain separate advice risks recreating the fragmented representation that the opt-out collective regime was intended to overcome.
The Court of Appeal in McLaren nevertheless points to a constructive way forward: directions at the first CMC or certification could establish safeguards before problems arise. [11] Subject to the limits imposed by litigation privilege, proposed class representatives are likely to explore that opportunity in future cases, particularly where they propose representing businesses. The Court also suggested that a CAT practice direction could provide broader guidance. If those measures prove insufficient, further appellate clarification or legislative intervention may be needed.
[1] Nippon Yusen Kabushiki Kaisha and others v Mark McLaren Class Representative Ltd [2023] EWCA Civ 1471, [74]-[89], [101]-[106] and [124].
[2] Ad Tech Collective Action LLP v Alphabet Inc and others [2026] CAT 54, [91]-[95].
[3] Professor Barry Rodger v Alphabet Inc and others [2026] CAT 58, [13]-[19] and [88]-[95].
[4] Dr Sean Ennis v Apple Inc and others [2026] CAT 72, [3]-[9] and [101]-[121].
[5] McLaren [2023] EWCA Civ 1471 at [103]-[105]; Ennis [2026] CAT 72 at [117].
[6] Order (Class Communications), Dr Sean Ennis v Apple Inc and others, Case No. 1601/7/7/23, 8 September 2026, para 3.4(c).
[7] McLaren [2023] EWCA Civ 1471, at [113]–[115].
[8] Ennis [2026] CAT 72, at [62] and [108].
[9] McLaren [2022] CAT 53, at [5] and [29]; McLaren [2023] EWCA Civ 1471, at [14]-[15], [126]-[134].
[10] Ennis [2026] CAT 72, at [111].
[11] McLaren [2023] EWCA Civ 1471, at [115].