In the case Evans v Barclays Bank PLC & Ors [2023] EWCA Civ 876 handed down on the 25th July, the Court of Appeal has given its judgment in two appeals on FX collective claims brought by competing class representatives (“Evans” and “O’Higgins”) against the 2022 judgment of the Competition Appeal Tribunal (the “CAT”) denying certification of their collective claims on a so-called “opt-out” basis.
The underlying collective claims concern alleged anticompetitive behaviour in foreign exchange markets by six banking groups. The claims, including interest, are currently valued at around £2.7 billion.
The Court of Appeal reversed the majority decision of the CAT and held that the claims could proceed on an “opt-out” basis.
The Court of Appeal’s judgment contains guidance on: (1) when challenges to CAT decisions can proceed by means of an appeal under s.49(1A)(a) of the Competition Act 1998 (as opposed to judicial review); (2) the manner in which the CAT is to approach the choice between “opt-out” and “opt-in”; (3) the application of the rule in Hollington v Hewthorn [1943] KB 587 to proceedings in the CAT; and (4) the approach to be adopted in appeals from CAT decisions on “carriage”.
Thomas Sebastian along with Brian Kennelly KC, Paul Luckhurst and Hollie Higgins acted for the Respondent Banks in the appeal and was instructed by Baker McKenzie LLP; Allen & Overy LLP; Herbert Smith Freehills LLP; Slaughter and May; Macfarlanes LLP; Gibson, Dunn & Crutcher UK LLP and Latham & Watkins LLP.
A copy of the judgment can be found here.
