In its judgment yesterday in Meta v Gormsen [2026] EWCA Civ 993, the Court of Appeal dismissed an appeal by Meta seeking to exclude the remedy of “user damages” in competition claims.
In the underlying proceedings, the Class Representative contends that Meta abused its dominant position by making access to Facebook conditional upon users giving up access to certain personal data concerning their off-Facebook activities. The claim was certified by the CAT in February 2024 and is set down for a 10-week trial in October 2028.
One of Meta’s defences to the claim is that it would not in fact have made a payment in a counterfactual absent abuse. The CR then successfully applied for permission to amend her claim form to seek the remedy of “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.
Meta challenged the CAT’s decision to give leave to amend on the ground that user damages can never be awarded for a ‘non-proprietary tort’, such as a breach of competition law. Its case was that there is binding authority to this effect, namely Stoke-on-Trent v W&J Wass Ltd [1988] 1 WLR 1406 and Devenish Nutrition v Aventis [2009] Ch 390.
The Court of Appeal rejected these contentions. It held that the CAT had made a case management decision to permit the amendment with which it should not interfere: [33]-[39]. In any event: (i) neither Wass nor Devenish decides that user damages cannot be awarded for a breach of competition law: [45], [50]; (ii) the categories of case identified in One Step in which user damages can be awarded are not exhaustive: [59]; and (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, which is not a proprietary tort: [55].
The Court of Appeal also rejected Meta’s contentions that section 18 of the Competition Act is not intended to protect property rights and that user damages are available only if property is taken without consent and not if it is taken with consent obtained abusively: [64]-[65].
Niranjan Venkatesan KC (with Ian Simester of Fountain Court) acted for the successful respondent, instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.
View Judgment