Evans v Barclays Bank (referred to)

This Court considered an appeal from the Competition Appeal Tribunal's certification decisions in competing collective actions arising from EU Commission findings of infringement in FX spot trading. Key legal principles decided include: the CAT has an inherent power to consider and strike out non-viable claims of its own motion; the statutory appeal route under section 49 CA 1998 is to be construed broadly for points of law "as to the award of damages" so as to minimise unnecessary judicial review; and, when deciding opt-in v opt-out under CAT Rule 79(3), the CAT may take account of the strength of the claim and practicability but must explain the causal connection between any provisional view on merits and the choice of procedure.

The Court held that the CAT was within its case-management powers to defer strike-out and invite reformulation of pleadings but erred in treating its provisional negative view of the merits as decisive in favour of an opt-in certification. The Court therefore allowed the appeal in part (in relation to opt-in v opt-out), remitted certification to the CAT to reconsider in light of the judgment (and PACCAR) and otherwise dismissed the appeals.

The appeals arose from rival applications by two competing proposed class representatives (Mr Evans and Michael O'Higgins FX Class Representative Ltd) for certification of collective proceedings in respect of alleged cartel conduct in FX spot markets following European Commission decisions (Three Way Banana Split and Essex Express). The CAT had permitted amended opt-in applications while expressing serious concerns about the particularisation of causation and loss in the pleaded cases; by majority it further ruled that, given its view on the weakness of the pleaded claims and the practicability evidence, any certification should be on an opt-in basis and selected Mr Evans as the appropriate class representative.

Nature of relief sought: certification as class representative(s) and a Collective Proceedings Order (CPO) either opt-in or opt-out for follow-on aggregate damages under the Competition Act 1998 and related secondary rules.

Issues framed by the Court:

• Whether each challenge should proceed by statutory appeal under section 49 CA 1998 or by judicial review.
• Whether the CAT had and properly exercised the power to consider strike-out on its own motion and whether it applied the correct test (and standard) when deferring assessment of merits.
• How to apply CAT Rule 79(3) in deciding opt-in v opt-out, in particular the weight of "strength of the claim" and "practicability".
• Carriage: criteria for choosing between rival class representatives.
• Admissibility and probative weight of Commission decisions (including the later Sterling Lads decision) and the potential effect of the Supreme Court's PACCAR judgment on funding arrangements.

Court's reasoning (concise): The Court explained that appeals under section 49 are properly construed broadly to include many interlocutory and case-management decisions that affect the award of damages, and that judicial review should be confined to rare cases where no adequate appellate route exists. The CAT lawfully has power to consider strike-out suo motu and to require better-pleaded cases; given the novelty and difficulty it was within the CAT's discretion to invite reformulation rather than strike out. However, the CAT erred in the opt-in/opt-out exercise by giving determinative weight to a provisional view on merits that it had declined to finally determine; the CAT also under-appreciated practicability evidence (that opt-in would fail to convert a critical mass of claimants). The Court therefore quashed the opt-in aspect of the CAT's approach, directed remittal to the CAT to reconsider certification (including taking account of PACCAR and the Sterling Lads material where relevant), and otherwise upheld the CAT's exercise of case-management discretion and its appointment of Mr Evans as the carriage representative.

Appeal allowed in part. The Court held that (i) the CAT has power to consider strike-out of non-viable claims of its own motion and was entitled to defer a strike-out decision pending improved pleadings; (ii) the statutory appeal route should be construed broadly, reducing the scope for judicial review; (iii) the CAT erred in treating a provisional negative view of the merits as determinative when deciding opt-in v opt-out under CAT Rule 79(3); and (iv) the CAT did not err in selecting Mr Evans as class representative. The matter is remitted to the CAT to reconsider certification (and any consequent CPO) in light of this judgment and the PACCAR decision.

Appeal from the Competition Appeal Tribunal ([2022] CAT 16) to the Court of Appeal ([2023] EWCA Civ 876). Permission to appeal was given by the CAT. The Court of Appeal heard the appeal and remitted the matter to the CAT for reconsideration consistent with its judgment.