Michael O’Higgins FX Class Representative Ltd and Mr Phillip Evans v Barclays Bank PLC and others
[2022] CAT 16
07 Apr 2022
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The Competition Appeal Tribunal (CAT) has handed down an important judgment refusing to certify applications for an ‘opt-out’ collective proceedings order under section 47B of the Competition Act 1998 and giving guidance as to how it will determine ‘carriage disputes’ between two competing class representatives.
Two proposed class representatives had applied to the CAT for permission to bring ‘opt-out’ collective proceedings against a number of global banks for follow-on competition damages allegedly arising from two infringement decisions of the European Commission relating to the conduct of foreign exchange traders at certain banks.
Following a five-day certification hearing, a majority of the CAT determined that it would certify neither application for collective proceedings on an ‘opt-out’ basis. It referred in particular to its concerns about the strength of the proposed claims and to the practicability of ‘opt-in’ proceedings as an alternative. It held that the Applicants could file revised applications for opt-in proceedings within 3 months of the judgment. If the carriage dispute had been relevant then the CAT would have granted carriage to Mr Evans.
The CAT’s full judgment can be found here.
Brian Kennelly QC, Paul Luckhurst and Hollie Higgins acted for UBS (instructed by Gibson, Dunn & Crutcher UK LLP).
