Michael O'Higgins FX Class Representative Ltd and another (Respondents) v Barclays Bank Plc and others (Appellants)

Hearing listed

Case summary
Linked cases
Appeal

Case summary

Case ID

UKSC/2023/0175

Parties

Appellant(s)

(1) Barclays Bank plc (2) Barclays Capital Inc.

(3) Barclays plc (4) Barclays Execution Services Ltd

Respondent(s)

Michael O'Higgins FX Class Representative Ltd

Phillip Gywn James Evans

Issue

(1) Was the Court of Appeal wrong to overturn the decision of the Competition Appeal Tribunal (the “CAT”) on the basis that the CAT’s decision incorrectly relied on its provisional assessment of the merits in determining whether proceedings should be certified as opt-in or opt-out? (2) In deciding to overturn the decision of the CAT, was the Court of Appeal wrong to place reliance on factors such as the likelihood of claims proceeding if not certified as opt-out and certain principles underlying the statutory scheme for collective proceedings?

Facts

This appeal arises following investigations into foreign exchange (“FX”) spot trading (meaning the purchase or sale of a foreign currency for immediate delivery on a specified date) and findings by the European Commission (the “Commission”) in two settlement decisions (the “Settlement Decisions”) of infringements of competition law in relation to this type of trading. The Appellants are all entities forming part of major banking groups (the “Banks”) which participated in FX spot trading during the relevant period. On 16 May 2019, the Commission adopted the Settlement Decisions which found ‘by object’ infringements of competition law, meaning the infringements were by their very nature harmful to the proper functioning of competition. The infringements identified in the Settlement Decisions were an understanding between four or five traders employed by the Banks to exchange certain current or forward-looking commercially sensitive information and to coordinate their trading activity with respect to FX spot trading of certain currencies. The Commission did not make any finding that the conduct in question led to any particular effects on the relevant market. Following the Settlement Decisions, two representatives (the Respondents to this appeal and each referred to as a “proposed class representative” or “PCR”) brought separate applications to be certified to act collectively for a class of claimants against the Banks. The PCRs asserted that infringements of competition law in FX spot trading had resulted in persistent, market-wide harm in the form of widened spreads (meaning greater differences between the purchase price and sale price of a unit of currency) by traders within the Banks and other competitor banks. The CAT refused to certify either PCR’s claim on an opt-out basis and concluded that both PCRs had failed to plead an adequate case on causation. The CAT decided not to strike out the claims but found the weakness of the PCRs’ claims was a factor pointing strongly against certification on an opt-out basis. Therefore, the CAT stayed the claims and gave the PCRs a period of time to refile their claims on an opt-in basis. The PCRs appealed and the Court of Appeal allowed the appeal, finding the CAT had erred in its approach to the opt-in versus opt-out issue. In its reasoning, the Court of Appeal made reference to a separate decision that had been published by the Commission on 5 July 2022 (the “SL Ordinary Decision”). The SL Ordinary Decision was addressed to a different bank (not party to these proceedings) and found an infringement of competition law in relation to FX spot trading. The Banks now appeal to the Supreme Court.