Evans v Barclays Bank Plc and others

When choosing between opt-in and opt-out competition collective proceedings, the Competition Appeal Tribunal starts from neutrality and exercises a broad discretion under rule 79(3) of the Competition Appeal Tribunal Rules 2015. The merits operate on a sliding scale. A weak claim may strongly oppose opt-out certification even though it survives strike-out or summary judgment.

Practicability requires an objective assessment of how reasonable potential claimants would assess participation. Distinct claimant groups should be considered separately before an overall evaluation is made. Access to justice and deterrence do not create a presumption for opt-out proceedings because defendants must also be protected from oppressive or unmeritorious litigation.

Findings made against a third party by another decision-maker are generally inadmissible as proof of the facts found. They may, at an interlocutory stage, identify evidence reasonably expected to be available at trial.

Mr Evans sought a collective proceedings order under section 47B of the Competition Act 1998 for follow-on damages claims arising from European Commission decisions concerning exchanges of information between foreign-exchange traders. The proposed classes included customers of the defendant banks and customers of other financial institutions. Aggregate damages exceeding £2 billion were indicated.

The Competition Appeal Tribunal, by a majority, considered the pleaded theory of causation very weak. It declined to certify the proceedings on an opt-out basis, although it postponed any strike-out decision to permit reformulation: [2022] CAT 16. The Court of Appeal reversed that determination and remitted the application: [2023] EWCA Civ 876.

The Supreme Court considered the relevance of claim strength, the objective meaning of practicability, the role of access to justice and deterrence, the proper scope of appellate intervention, and the admissibility of findings in a later European Commission decision addressed to a third party.

1. Appeal allowed. Lord Sales, Lord Leggatt and Lady Rose delivered the joint judgment, with which Lord Burrows and Lord Richards agreed. The Court reinstated the Tribunal’s refusal to make an opt-out collective proceedings order.

2. Under rule 79(3)(a) of the Competition Appeal Tribunal Rules 2015, claim strength is not generally neutral. It operates on a sliding scale. A claim may survive the low threshold for strike-out or summary judgment yet remain so weak that opt-out certification is inappropriate. The Tribunal permissibly found no plausible pleaded causal route between occasional exchanges of commercially sensitive information and losses allegedly affecting every relevant transaction across a vast market. Granting such a claim the leverage of opt-out proceedings could expose defendants to disproportionate settlement pressure and conflict with the rule 4 overriding objective.

3. Practicability under rule 79(3)(b) requires an objective evaluation of how a reasonable person in a potential claimant’s position would assess participation. Where a proposed class contains materially different groups, the Tribunal should assess each group by reference to a typical member and then make an overall evaluation. The Tribunal permissibly distinguished sophisticated institutions with substantial claims from individuals and smaller entities with low-value claims. It could conclude overall that opt-in proceedings were practicable, despite accepting that many small claimants could not realistically opt in.

4. The statutory starting point is neutral. Neither access to justice nor deterrence creates a presumption for opt-out proceedings. Those policies are counterbalanced by the rights of defendants and the need to prevent oppressive, inflated or unmeritorious litigation. The collapse of a claim without opt-out certification is relevant but is not a trump card or an entitlement to opt-out treatment.

5. The choice between opt-in and opt-out proceedings is an evaluative case-management judgment entrusted to an expert tribunal with a broad discretion. An appellate court may intervene for legal error, but cannot substitute its preferred inferences merely because it would have weighed the evidence differently. The Court of Appeal identified no legal error justifying its intervention.

6. The common-law rule associated with Hollington v Hewthorn applies in the Tribunal. Findings made in a European Commission decision against a third party were inadmissible as proof against defendants who could not participate in or challenge the earlier process. At an interlocutory stage, prior material may nevertheless be used to identify admissible evidence reasonably expected to be available at trial. The later Commission decision did not perform that function and was irrelevant to the pleaded theory of causation.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The Court set aside the Court of Appeal’s order and reinstated the Tribunal’s refusal to make an opt-out collective proceedings order: [2025] UKSC 48.
2. Court of Appeal: The Tribunal’s determination on opt-in versus opt-out proceedings was set aside, and the application was remitted for reconsideration and case management: [2023] EWCA Civ 876.
3. Competition Appeal Tribunal: The Tribunal certified that the claims could proceed collectively but, by a majority, refused opt-out certification and permitted revised applications on an opt-in basis: [2022] CAT 16; [2022] Bus LR 1334.