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Court of Appeal opts for opt-out in FX claims


In a judgment handed down today, the Court of Appeal allowed the appeals brought by two separate proposed class representatives (‘O’Higgins’ and ‘Evans’), each of whom had applied for certification of collective proceedings on an opt-out basis seeking to claim damages on behalf of businesses arising from two cartels in the foreign exchange market found by the European Commission.

The Competition Appeal Tribunal had ruled in 2022 (by a 2-1 majority) that those proceedings could only be brought on an opt-in basis (in which class members must opt in to the proceedings at the outset) rather than opt-out (in which class members are automatically included in the claims unless they opt out). The majority of the Tribunal did so even though it recognised that certification on an opt-in basis would effectively bring the proceedings to an end. The dissenting member would have certified on an opt-out basis enabling the proceedings to continue.

The Court of Appeal unanimously ruled that the proceedings should be certified on an opt-out basis.

The Court of Appeal did not disturb the Tribunal’s other (unanimous) ruling below that Evans should be certified in preference to O’Higgins to have carriage of the claims on behalf of class members.

In the judgment, the Court of Appeal also provided guidance on the scope of the right of appeal under section 49(1A)(a) of the Competition Act 1998.

You can view the previous news item here.

You can view the judgment here.

Aidan Robertson KC, Victoria Wakefield KC, David Bailey and Sophie Bird (instructed by Hausfeld & Co LLP) appeared on behalf of Mr Phillip Evans.

Daniel Jowell KC, Gerard Rothschild and Charlotte Thomas (instructed by Scott+Scott UK LLP) appeared on behalf of Michael O’Higgins FX Class Representative Ltd. Emma Mockford has also acted for Michael O’Higgins FX Class Representative Ltd.