Competing class actions in the Competition Appeal Tribunal: no preliminary ruling on carriage issue

In a recent ruling in the Forex litigation, the Competition Appeal Tribunal (CAT) has held that the question of which of two competing applicants can represent the potential claimant class should be determined at the same time as the CAT considers whether the case can proceed at all: Michael O’Higgins FX Class Representative Ltd v Barclays Bank PLC and others; Mr Phillip Evans v Barclays Bank plc & others [2020] CAT 9.

Unlike most other class actions in the English courts, competition class actions in the CAT can be brought on an “opt out” basis, subject to the CAT certifying the proceedings by granting a collective proceedings order (CPO). An “opt-out” claim means that a claim can be brought on behalf of all those who suffered loss as a result of the relevant conduct, without individual claimants having to come forward and be named in the action.

The present claims arise out of two European Commission settlement decisions relating to cartels in the Spot Foreign Exchange market. Following those decisions, two competing applications were made to the CAT for a CPO on an “opt-out” basis against, in large part, the same respondents. Only one of the CPO applications can be certified.

The applicants applied for an order that the so-called “carriage dispute” should be determined as a preliminary issue, with only the successful party then proceeding with a single application for a CPO (at a hearing scheduled for March 2021). This submission was supported by three of the respondents, with the others taking a neutral stance such that no party opposed the application. Nonetheless, the CAT refused the application, and instead ordered a single substantive hearing to determine whether a CPO should be made at all, and if so, to which class representative.

For more information see this post on our Competition Notes blog.

Note: A joint case management conference took place on 15 January 2021.

The hearing for the CPO Application listed for 1 March 2021 has been vacated.