Supreme Court confirms funders return may be calculated as a multiple of the sum invested

13 November 2025

The Supreme Court has refused Apple Inc permission to appeal the Court of Appeal’s ruling regarding the funding arrangements in the case of Gutmann v Apple Inc.

The case of Gutmann v Apple Inc is an opt-out collective proceedings claim being brought in the Competition Appeal Tribunal (CAT) due to alleged breaches of competition law. The claim is essentially that Apple leveraged and abused its position of dominance in the market of premium smartphones or iOS operating systems in the UK by engaging in commercial practices, such as failing to inform customers of battery issues and the impact that certain software may have on their iPhones, which caused harm to customers.

As part of Gutmann’s application for a Collective Proceedings Order, the CAT considered its funding arrangements to confirm whether they were capable of approval. Under the litigation funding agreement (LFA), the funder’s return would be calculated as a multiple of the sum of its investment, up to a maximum of the sum of damages awarded to the class. The LFA permitted the funder’s fee to be paid out of damages, in preference to class members. The CAT approved the funding arrangements but, when Apple applied for permission to appeal, the CAT permitted this.

Apple appealed to the Court of Appeal, arguing that because the amount payable to the funder was payable from and/or capped by the proceeds of a successful outcome, the amount of the payment is “determined by reference to the amount of the financial benefit obtained”, the LFA was a damages based agreement (DBA) which would be unenforceable. The Court of Appeal determined that the funder’s fee would be determined, not by reference to the damages recovered but by reference to the amount of funding provided. Even though the source of the fee paid would be the damages recovered, this does not turn it into a DBA, nor does the fact that there would be a cap on the funder’s fee of the amount of damages recovered. The fee is still calculated or determined by reference to the amount of funding provided.

Apple sought to appeal this decision further and applied to the Supreme Court for permission to appeal the Court of Appeal’s judgment. On 6 November 2025, the Supreme court refused the application for permission to appeal on the basis that it did not raise an arguable point of law.

The decision confirms that calculating the funder’s return by use of a multiple on the sum of the investment is permitted, even if it is capped based on the sum of the damages recovered.

This article was written by Ellie Kenyon.