The Challenges of Establishing Credibility In Opt-Out Collective Actions
A decade on from the introduction of the UK’s first opt-out collective proceedings regime for competition law claims in the Competition Appeal Tribunal (CAT), collective actions are now firmly established as part of the legal landscape. The Tribunal itself has matured, and procedures have become more settled, but recent moves, such as the Department for Business and Trade’s call for evidence, show the regime remains open to scrutiny and further evolution.
At the heart of that scrutiny lies the question of legitimacy. Collective redress is an important tool that allows compensation to flow directly to affected consumers. But the rapid growth of claims, alongside concerns about the size of awards and claimant uptake, has intensified debate around how well collective redress serves consumers. Claimants argue it delivers access to justice and consumer accountability while critics, particularly business lobby groups, describe it as a “gravy train” for funders and lawyers, with consumers seeing little benefit.
As we start to see settlement in the CAT, questions around the value of the claims being brought and the low take-up of damages by claimants, have begun to expose the regime to reputational risk. Unless claims can be shown to be proportionate, credible, and consumer-focused, the system risks being tainted as driven by lawyers and funders, rather than by the need for consumer redress.
Public perception of a claim is now coming to matter almost as much as the legal process. The CAT requires cases to be not just legally sound but procedurally and publicly coherent. Strategic PR is central to that coherence: it establishes legitimacy, frames claims as consumer-first and builds the reputational environment in which defendants are more likely to engage or settle.
PR and communications are therefore fundamental as a central strategic pillar in building, launching and settling any collective action.
Collective opt-out claims come with inherent narrative advantages: vast sums, powerful corporate defendants, and the David-versus-Goliath appeal. But these advantages can be squandered if communications fail to connect consumers with the claim. The PR challenge is threefold: ensuring accurate coverage, engaging class members, and applying reputational pressure on defendants to engage constructively.
At its core, legitimacy requires that redress be proportional to wrongdoing, that arguments be coherent and trustworthy, and that consumers remain central. Visible engagement from class members amplifies pressure and validates the claim. Communications must therefore build clarity, trust, and traction, reaching consumers through trusted sources such as mainstream media outlets, consumer advocates, and respected commentators.
Stakeholder voices also play an important role. Policymakers can elevate a claim from legal dispute to reputational legitimacy. While the legal process provides the framework, public perception shapes how that process is received, reported, and ultimately judged. PR and communications are therefore essential in creating legitimacy through endorsement. Together, these factors form an ecosystem of legitimacy.
Where PR and Communications Are Fundamental to Building Legitimacy
Collective actions thrive or fail on legitimacy. While the legal process provides the framework, public perception shapes how that process is received, reported, and ultimately judged. PR and communications are therefore fundamental as a central strategic pillar in building, launching and settling any collective action.
Strategic Phases of Communications
The communications strategy must align with the legal process but also sustain its own momentum. Each stage carries distinct objectives: building credibility, sustaining pressure, and reinforcing legitimacy.
- Pre-Filing, Announcement, Certification, and Competing Claims
The announcement of a claim is the most important moment to establish legitimacy. Pre-filing communications lay the groundwork, positioning the case as a structured, well-founded response to genuine consumer harm, led by a credible and trusted Class Representative.
At certification, the Tribunal examines not only the legal soundness but also whether the claim appears coherent, proportionate, and capable of delivering redress. Communications must showcase organisation, credibility, and consumer benefit, while introducing the Representative as a trusted figure. Early evidence of consumer engagement is particularly valuable in persuading stakeholders—and ultimately the CAT—that the case has legitimacy.
Where rival or overlapping claims exist, communications must focus on elevating the leading claim as the most coherent and effective option. Public attacks on competing claims risk confusing consumers and undermining confidence. Instead, the narrative should stress clarity, structure, and public interest.
- Active Proceedings
Once certified, the task shifts to sustaining visibility and engagement. Communications should run in tandem with the legal process but also create distinct moments to reinforce legitimacy and build pressure. This is the stage where broader endorsements can play a decisive role: trade groups, policymakers, or institutional investors speaking out against the defendant can raise the stakes and add credibility to the claimant’s cause.
Consumer engagement also remains vital. Trusted third-party voices—whether consumer champions, influencers, or respected commentators—can help drive awareness and participation. At the same time, communications must be aligned with claims administrators to ensure that updates are timely, user-friendly, and tailored to prevent fatigue. For example, regular but measured email updates or push notifications keep the class engaged without overwhelming them.
This stage is also where legitimacy is most vulnerable: delays, technical barriers, or disengaged class members can erode trust quickly. Ongoing communication must therefore anticipate these risks, reinforcing clarity and accountability at each step.
- Settlement, Legal Victory, and Distribution
The settlement or outcome stage is a reputationally sensitive moment. A poorly communicated resolution risks undermining legitimacy, even if the legal result is sound. If consumers do not understand the outcome, feel excluded, or perceive that lawyers and funders have benefited disproportionately, trust in the entire regime suffers.
Clear, accessible communication is therefore essential. Consumers must understand what has been achieved, what redress they are entitled to, and how to claim it. Working closely with their legal claims’ administrators, and PRs, claimant groups should ensure that messaging is consistent, timely, and easy to act upon. The media also plays a critical role here: effective engagement can help encourage people to come forward to claim the compensation owed to them; and build a narrative around fairness and proportionality rather than scapegoating.
This is also an opportunity for defendants. Companies can use the settlement process to demonstrate that they value consumers—particularly when many claimants remain customers—by publicly framing the redress as part of a commitment to accountability and lessons learned for their future conduct.
Ultimately, high claimant uptake is the strongest demonstration of legitimacy. It validates the system, reassures the Tribunal, and leaves less room for critics to argue that collective actions benefit only the advisors. Settlements that secure meaningful distribution to consumers not only serve justice but strengthen the system’s long-term credibility.
Legitimacy Is Key
Ten years in, the UK’s collective redress regime is embedded, but its legitimacy is being contested. Proponents stress that the regime enforces consumer rights and delivers access to justice. Critics warn of a drift toward US-style litigiousness, with funders and lawyers benefitting disproportionately while consumer participation remains low.
The system is still maturing, and its reputation will depend as much on the technicalities of legal procedure as to how effectively claims are communicated, understood, and resolved. Courts, press, policymakers, and the public are all alert to questions of proportionality and consumer benefit. As it enters its second decade, the survival of the UK’s opt-out regime will depend on whether claims demonstrate legitimacy in practice.
Senior Account Manager
This article can be found in issue 18 of the ThoughtLeaders4 Disputes Magazine, on pages 47-48.
https://thoughtleaders4.com/images/uploads/pdf/82118_Disputes_Issue_18v4.pdf
