On 23 March 2022, the Court of Appeal handed down another judgment in the case between investment funds Allianz Global Investors GmbH and Others and several banks including Barclays, Citibank and JPMorgan in the context of the forex-cartel.^[1]Court of Appeal (Civil Division) 23 March 2022, [2022] EWCA Civ 353, Case NO: CA-2021-000556 (formerly A4/2021/0726). The claimants had applied to strike out the banks’ defence that the funds had avoided or “passed on” to investors all or part of the losses they are claiming against the Banks in these proceedings.

The defendants argued that the funds passed on their losses to investors who cashed out on assets with reduced value, and who could thus claim these damages themselves. The claimants, on the other hand, argued that the investors themselves would have no cause of action.

The UK High Court had sided with the defendants in February 2021 (which we reported on in Q2021-1), in considering that the alleged pass-on would not be impossible or bound in law to fail. The Court of Appeal, however, now ruled otherwise and concurred with the claimants instead. The court said the lower court was wrong to decide that the individual investors had independent causes of action and besides, that any potential benefit of lower redemptions for the funds is to be regarded as “collateral” and therefore would fall under the exception for collateral payments, which the law treats as not making good the claimant’s loss.