Phillip Gwyn James Evans v Barclays Bank PLC & Ors

A statutory appeal from a collective-proceedings decision of the CAT is not confined to an order quantifying damages. Under section 49(1A)(a) of the Competition Act 1998, a point of law is sufficiently connected with damages where it can affect the existence, scope, procedure or quantum of a claim. Where that appeal route exists, judicial review should generally not be used.

In deciding between opt-in and opt-out proceedings under Rule 79(3), the CAT must assess practicability in a broad, proportionate and cost-effective sense. If opt-in proceedings are unlikely to proceed, that is a powerful factor favouring opt-out proceedings. The strength of the claim is relevant only if connected to that procedural choice and must not be treated as decisive while the merits remain provisional.

Two rival proposed class representatives, Mr Evans and Michael O’Higgins FX Class Representative Ltd, sought certification of collective proceedings concerning alleged foreign-exchange cartels. In [2022] CAT 16, the CAT majority considered that the claims were theoretically plausible but insufficiently particularised on causation and loss. It deferred strike-out, permitted revised pleadings, and indicated that any proceedings should proceed on an opt-in basis. The CAT selected Evans rather than O’Higgins as class representative if opt-out proceedings were permitted.

The appeals and related judicial-review proceedings concerned the proper route of challenge, the CAT’s power and approach to claim viability, the choice between opt-in and opt-out proceedings, and carriage. The central issues were whether the CAT had erred in treating opt-in proceedings as practicable and whether it had given excessive weight to its provisional view of the claims’ strength.

Lord Justice Green gave the leading judgment, with the Chancellor of the High Court and Lord Justice Snowden agreeing.

1. Disposition. The appeals were allowed insofar as the CAT had declined to certify the proceedings on an opt-out aggregate-damages basis. All other appeals were dismissed. Permission to apply for judicial review was refused, and the matter was remitted to the CAT for further decision and case management, including consideration of the implications of PACCAR.
2. Appeal and judicial review. Section 49(1A)(a) of the Competition Act 1998 imposes cumulative limits, but the connection between the point of law and damages need not be direct or close. The statutory appeal route extends to decisions affecting the viability, scope or procedure of a damages claim, including certification and carriage. Where an appeal lies, judicial review should not normally be pursued.
3. Claim viability. The CAT had power, of its own motion, to consider whether the claims were viable at certification or later. It did not err by deferring strike-out and allowing revised pleadings in a novel and developing field. The CAT’s future assessment remained open and was not finally determined by its provisional observations.
4. Opt-in or opt-out. Rule 79(3) gives the CAT a broad discretion. Strength and practicability are relevant factors, but strength cannot operate as an automatic sliding scale under which weak claims receive opt-in treatment. If the CAT defers a final merits assessment, it cannot treat its provisional view as definitive or decisive. Practicability means more than mere doability and includes reasonableness, proportionality, expedience, cost-effectiveness and efficiency. The evidence that opt-in proceedings would probably not proceed was a powerful factor favouring opt-out proceedings. The sophistication or knowledge of class members did not itself make opt-in proceedings practicable.
5. Evidence and carriage. The CAT was not bound by the rule in Hollington v Hewthorn. Under Rule 55(1)(b), it could admit and assess prior regulatory findings, determining their weight by reference to matters including statutory binding effect, factual overlap, expertise, standard of proof and the forensic use sought. The CAT’s selection of Evans as class representative was a multifactorial evaluation within its broad discretion. Neither a wider claim nor being first to file created an automatic advantage, and lawyer- or funder-led representatives were not generically disfavoured.
6. Final powers and costs. Under section 15(3) of the Senior Courts Act 1981, the Court of Appeal had the authority and jurisdiction of the CAT for purposes incidental to the appeal, including making or varying a collective proceedings order. Since no sealed CPO had actually been made, remittal was appropriate. The court also made detailed costs directions, including no order on the judicial-review costs and liberty for Evans to apply to the CAT for interim costs.

• Court of Appeal (Civil Division). In [2023] EWCA Civ 876, the appeal succeeded on the opt-in versus opt-out issue. The Court otherwise dismissed the appeals, refused permission for judicial review, and remitted the matter to the CAT.
• Competition Appeal Tribunal. In [2022] CAT 16, the majority deferred strike-out, allowed revised pleadings, treated opt-in proceedings as practicable, and selected Evans rather than O’Higgins as class representative if opt-out proceedings were permitted.