In Meta Platforms Inc v Dr Liza Lovdahl Gormsen [2026] EWCA Civ 993, the Court of Appeal dismissed an appeal by Meta which sought to exclude the remedy of user damages from competition law claims.
In the underlying collective proceedings (valued at approximately £3 billion), the Class Representative alleges that Meta abused its dominant position by making access to Facebook conditional on users giving up access to certain personal data concerning their off-Facebook activities. The Class Representative also alleges that, had Meta not acted abusively, it would have made a payment to users in exchange for permission to collect and use that data.
One of Meta’s defences to that claim is that it would never have paid users for the data in question. The Class Representative accordingly applied for permission to amend her Claim Form to seek “user damages”, i.e. the remedy described as “negotiating damages” by the Supreme Court in One Step (Support) Ltd v Morris-Garner [2019] AC 649. At first instance, the Competition Appeal Tribunal permitted the Class Representative’s application to amend: [2025] CAT 55.
Meta appealed the Tribunal’s decision. It argued that user damages are, as a matter of law, unavailable for a non-proprietary tort such as a breach of competition law, and that the Tribunal was bound by Stoke-on-Trent City Council v W&J Wass Ltd [1988] 1 WLR 1406 and Devenish Nutrition Ltd v Sanofi-Aventis [2009] Ch 390 so to hold.
The Court of Appeal (Green LJ, with whom Phillips and Zacaroli LJJ agreed) rejected those arguments. It held that the Tribunal had made a case management decision to permit the amendment with which it should not interfere: [33]-[39]. That was sufficient to dispose of the appeal, but it in any event went on to hold that: (i) neither Wass nor Devenish decides that user damages can never be awarded for a breach of competition law: [45], [50]; (ii) the categories of case identified in One Step in which user damages are readily awarded are not exhaustive: [59]; (iii) the availability of user damages for non-proprietary breaches of contract undermines Meta’s contention that they are confined in tort to proprietary torts, as does their availability in the tort of misuse of private information: [55]; and (iv) even if Devenish were (contra the Court of Appeal’s view) read as Meta contended, there was real force in the view that this would involve a manifest error sufficient to release a later court from any duty to follow it: [53].
The Court of Appeal also rejected Meta’s arguments that section 18 of the Competition Act 1998 is not intended to protect property rights and that user damages are available only if property is taken without any consent (as opposed to, e.g., where consent has been obtained abusively): [64]-[65].
Ian Simester acted for the successful Respondent, led by Niranjan Venkatesan KC of One Essex Court and instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.
A copy of the judgment is available here.
