Daniel Carall-Green and Victoria Green, led by Robert O’Donoghue KC of Brick Court Chambers, acted for Dr Ennis in successfully resisting Apple’s application for a trial of preliminary issues in Dr Ennis’s collective proceedings brought on behalf of UK app developers.
As explained in the previous post here, Dr Ennis’s case is that app developers have paid excessive and unfair prices in the form of Apple’s commission on sales made via the App Store.
As also explained in that previous post, Apple complains that Dr Ennis’s case (improperly) relates to commissions on app developers’ sales to device users all over the world (as opposed to just in the UK and, until the end of 2020, the EU). Apple’s position is that the law applicable to such claims is the law of the place where the device user is based. Alternatively, Apple says that the commissions on sales made elsewhere are outside the territorial scope of UK/EU competition law. Either way, Apple says the claims in respect of commissions on sales to non-UK/EU device users cannot not be heard in the Tribunal—because (under statute) the Tribunal can only apply UK competition law. In 2024, Apple applied to have the claims struck out on that basis. The Tribunal refused that application.
In 2025, Apple applied instead to have the questions of applicable law and territorial scope resolved as preliminary issues. The Tribunal has now rejected that application on various bases.
First, it was not possible to achieve a clean split between the questions of applicable law and territorial scope and questions going to liability. For example, both sets of questions would require factual and expert evidence as to the scope of services provided by Apple, and as to the effects of Apple’s conduct on the market.
Second, the parties were unable to agree a set of assumed facts on which the proposed preliminary issues trial could proceed.
Third, it was common ground that the determination of the questions of applicable law and territorial scope would not dispose of the whole case, since UK app developers make substantial sales within the UK/EU.
Fourth, there was a risk that a preliminary issues trial would increase costs.
Finally, there was a risk that a preliminary issues trial would delay the outcome of the case overall—especially if (as the Tribunal thought was not unlikely given the novelty of the issues) there were to be an appeal on applicable law and territorial scope.
As a result, the Tribunal decided that the best course was to order a single trial without preliminary issues.
The full judgment can be found here.
