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CAT rules on when to hear carriage dispute


Michael O’Higgins FX Class Representative Ltd v Barclays Bank plc & others; Mr Phillip Evans v Barclays Bank plc & others [2020] CAT 9

A “carriage dispute” arises when there is more than one contender for the office of class representative in collective proceedings. The Competition Appeal Tribunal has ruled for the first time on when such a dispute should be determined.

The two contenders were Michael O’Higgins FX Class Representative Ltd. and Mr Phillip Evans. Each seeks to represent an “opt-out” class (or classes) of claimants seeking damages in respect of the “Three Way Banana Split” and “Essex Express” cartels concerning foreign exchange trading.

It is common in other jurisdictions with established class action regimes (e.g. Canada) to hear carriage disputes at an early stage. The two contenders in this case each argued for such an early determination, in particular on grounds of efficiency, as did certain of the proposed defendants; no party opposed.

However, despite “the parties’ united front”, the Tribunal disagreed. It noted the relevance of the pending Supreme Court appeal in Merricks v Mastercard on the test to be applied on applications for collective proceedings orders, and concluded that – because of the novel questions that the carriage dispute in this case gives rise to – the carriage dispute in this case should not be determined as a preliminary issue. Rather, there should be a single substantive hearing deciding both whether a collective proceedings order should be made and, if so, in favour of which class representative. That hearing is listed to take place in March 2021.

The judgment is available here.

Daniel Jowell QC and Gerard Rothschild appeared for Michael O’Higgins FX Class Representative Ltd, instructed by Scott + Scott UK LLP.

Aidan Robertson QC, Victoria Wakefield QC, Joanne Box and Aaron Khan appeared for Mr Phillip Evans, instructed by Hausfeld & Co LLP.

Daniel Piccinin and David Heaton appeared for Barclays, instructed by Baker McKenzie LLP.

Tony Singla appeared for Citibank, instructed by Allen & Overy LLP.

Sarah Ford QC appeared for JPMorgan, instructed by Slaughter and May.

Tom Pascoe appeared for RBS, instructed by Macfarlanes LLP.