25 July 2023: Mr Evans’ claims to proceed on opt-out basis
The Court of Appeal has ruled that Mr Evans’ claims should proceed on an opt-out basis for UK domiciled class members, overruling the Tribunal’s earlier decision to limit the claims to ‘opt-in’ proceedings. In addition, the court dismissed an appeal by the competing applicant for certification, Michael O’Higgins FX Class Representative Ltd, thereby confirming the Tribunal’s decision that Mr Evans should have carriage of the claims. As a result, the case will be remitted to the Tribunal for further case management directions.
25-28 April 2023: Hearing of Mr Evans’ certification appeal
The Court of Appeal considered Mr Evans’ appeal of the Tribunal’s certification judgment during a four day hearing in April 2023. Mr Evans contends that the Tribunal was wrong to conclude that the claims should only proceed on an opt-in basis. The court also considered a separate challenge to the Tribunal’s judgment by Michael O’Higgins FX Class Representative Limited. We expect the Court of Appeal to hand down its judgment later in 2023.
4 October 2022: Competition Appeal Tribunal grants permission to appeal
On 4 October 2022, the Tribunal granted Mr Evans permission to appeal its certification judgment in which it found that the claim should be certified as collective proceedings but declined to certify it on an opt-out basis. In its reasoned order, the Tribunal considered that there was a “real prospect” of Mr Evans persuading the Court of Appeal that the Tribunal’s decision not to certify the claims on an opt-out basis was erroneous in law. We expect that Mr Evans’ appeal will be heard by the Court of Appeal in 2023. Michael O’Higgins FX Class Representative Limited also seeks to challenge the Tribunal’s judgment and we expect its challenge to be heard at the same time as Mr Evans’ appeal.
The Tribunal’s order granting permission to appeal is available here.
31 March 2022: Competition Appeal Tribunal delivers judgment on certification and carriage
The Tribunal has handed down its judgment on Mr Evans’ application, deciding that the proposed collective proceedings can be certified, but on an opt-in basis only. Mr Evans intends to appeal.
Following the certification and carriage hearing which took place in July 2021, there were two issues for the Tribunal to consider:
(a) First, whether the proposed collective proceedings should be certified and, if so, whether they should be certified on an opt-in basis (in which class members must actively opt in to the proceedings at the outset) or opt-out (in which class members are automatically included in the claims unless they choose to opt out); and
(b) Second, the Tribunal considered Mr Evans’ application alongside a similar application by Michael O’Higgins FX Class Representative Limited. Due to the similarities between the two applications, the Tribunal had to decide which is more suitable to act as class representative. This was known as the ‘carriage dispute’.
The Tribunal handed down its judgment on 31 March 2022. On the first issue, the Tribunal found that the proceedings should be certified as collective proceedings. However, it declined to certify them on an opt-out basis.
On the second issue, the Tribunal unanimously agreed that, if the claims were to continue on an opt-out basis, the Tribunal would decide carriage in favour of Mr Evans’ application, FX Claim UK.
12-16 July 2021: Certification and Carriage Hearing
Mr Evans’ application was considered by the Competition Appeal Tribunal during a hearing between 12 and 16 July 2021. The two issues considered by the Tribunal were:
(a) whether the proposed FX collective proceedings should be certified; and
(b) if so, which proposed class representative (Mr Evans or Michael O’Higgins FX Class Representative Limited) should act as the class representative.
The Tribunal heard arguments from the legal teams of Mr Evans, O’Higgins and the banks regarding those two issues. In addition, Mr Evans, Mr O’Higgins and their respective experts appeared before the Tribunal and answered the Tribunal’s questions.
We are awaiting the Tribunal’s judgment.
21 June 2021: Pre-Hearing Review and Teach In
On 21 June 2021, the Tribunal held both a pre-hearing review with the parties to discuss the timetable of the certification hearing (which is due to commence on 12 July 2021) and a “teach in” with both of the proposed class representatives’ expert witnesses to assist the Tribunal’s understanding of the claims.
A transcript of the hearing is available here.
15 January 2021: Certification hearing to be held on 12 July 2021
During a case management hearing on 15 January 2021, the Tribunal set the date for the certification hearing in which it will consider Mr Evans’ application for a collective proceedings order (CPO). The CPO hearing will take place between 12 and 16 July 2021.
The Tribunal will hear Mr Evans’ application at the same time as another application for a CPO relating to the foreign exchange spot trading cartels, filed by Michael O’Higgins FX Class Representative Limited. As a result, the Tribunal may have to decide which of the proposed class representatives is the most suitable to act as the class representative.
The Tribunal has also set the timetable for various steps to take place in both applications before the CPO hearing. This includes provisions for additional legal submissions and evidence to be filed and served by the Proposed Defendants and both proposed class representatives. In addition, potential class members and other parties with an interest are entitled to object to either or both of the applications and apply to make submissions during the certification hearing. The Tribunal also directed that a joint publicity notice of the certification hearing be publicised by both of the proposed class representatives: the notice is available here.
A transcript of the hearing and the Tribunal’s directions order are available here.
11 December 2020: Supreme Court delivers Merricks judgment
On 11 December 2020, the Supreme Court delivered its judgment in another case involving an application for a CPO, Mastercard Inc v Walter Hugh Merricks CBE. The Merricks judgment clarifies the test to be applied by the Tribunal when considering CPO applications, including Mr Evans’ application.
Mr Evans commented: “The Supreme Court has, in its judgment in Merricks, set out a sensible process for the certification of collective proceedings. This is good news for the collective actions regime, for FX Claim UK and, in turn, the UK economy. This clear judgment will enable us to list a CPO hearing and progress to the next stage of the case.”
The Tribunal has listed a case management hearing for 15 January 2021 to determine a new hearing date for Mr Evans’ CPO application.
16 November 2020: Certification hearing to be re-scheduled
On 16 November 2020, the Tribunal made an order (available here) in which it vacated the 10-day hearing of Mr Evans’ application for a collective proceedings order (CPO) – which was scheduled to take place on 1 March 2021 – and directed that the hearing should take place at a later date.
17 April 2020: Amendments to Mr Evans’ CPO application are filed at the Competition Appeal Tribunal
Following disclosure of the confidential versions of the European Commission’s infringement decisions to Mr Evans and his legal and expert team, certain limited amendments have been made to Mr Evans’ CPO application. The amendments seek to reflect some of the material contained in the confidential versions of the decisions, to clarify certain matters in the CPO application, and to update the application to reflect developments since it was filed, including by providing further information regarding the additional ATE insurance that Mr Evans has obtained.
Those amended documents were filed at the Tribunal on 17 April 2020.
Those amended documents are available in the Claim Documents section of the website. It has been necessary to redact parts of some of those documents, as they contain or refer to material which has been disclosed into the joint confidentiality ring.
18 March 2020: Orders of the Competition Appeal Tribunal
On 18 March 2020, the Tribunal made two orders which are available here and provide for the following:
- Directions regarding some of the next steps in the proceedings. In particular, this order provides that Mr Evans and Michael O’Higgins FX Class Representative Limited shall exchange copies of their applications, together with any other documents filed and served in support of their applications so far. It also provides that the Proposed Defendants shall disclose copies of the confidential versions of the European Commission’s two infringement decisions to Mr Evans and his legal and expert team into a confidentiality ring (which is explained below); and
- A joint confidentiality ring has been established covering the two CPO applications into which particularly sensitive confidential documents and information can be disclosed with additional confidentiality protections. The documents to be disclosed into the joint confidentiality ring include the confidential versions of the European Commission’s two infringement decisions (non-confidential versions of the decisions are available here).
6 March 2020: Judgment of the Competition Appeal Tribunal
On 6 March 2020, the Tribunal handed down a judgment in which it held that the carriage dispute should not be determined as a preliminary issue. Instead, the Tribunal concluded that there should be a single hearing to determine whether a CPO should be made and, if so, to which class representative (as between Mr Evans and Michael O’Higgins FX Class Representative Limited).
Click here to read the Tribunal’s judgment. Click here to read a press release issued on behalf of Mr Evans regarding the Tribunal’s decision.
13 February 2020: Case management hearing at the Competition Appeal Tribunal
At this hearing, the Tribunal considered case management issues relating to both Mr Evans’ CPO application and the application brought by Michael O’Higgins FX Class Representative Limited. (For more information about the two different applications, see FAQ 26.)
In particular, the Tribunal heard submissions as to whether it should determine the question of which proposed class representative would be most suitable to represent the class(es) (known as the “carriage dispute”) as a preliminary issue, or whether there should be a single hearing to decide whether to grant a CPO, and if so, which proposed class representative (Mr Evans and Michael O’Higgins FX Class Representative Limited) should be granted the CPO (see FAQ 11 for more information in relation to this hearing).
Click here to read a transcript of the hearing.