On 25 February 2021, the UK High Court ruled on an application by banks including Barclays, UBS and Citibank to put forward “pass-on” arguments in order to defend themselves against damages claims brought by 175 claimants, including investment funds Allianz, Pimco and Brevan Howard.[1] The claims rely on two EC decisions released in 2019 in which several banks were fined for collusive behaviour regarding forex manipulation. The banks requested certain pass-on issues to be advanced and heard during the proceedings, against which the claimants protested. This case is not a typical case of pass-on; pass-on is said to occur when an investor redeems or withdraws its investment. The banks wanted to argue in the requested proceedings that damage suffered by the investment funds was passed on to investors who cashed out on assets with reduced value, and who could thus claim such damage themselves. The claimants argued that the investors themselves do not have a cause of action, which is why the defendant’s argument of pass-on mitigation has no real prospect of success and should be struck out. The claimants also noted that the pass-on defence of the defendants could lead to wide-ranging disclosure in respect of a bare assertion. The High Court concurred with the defendants, however, in considering that the alleged pass-on cannot be shown to be impossible or bound in law to fail and should therefore be admitted to the case.

[1] UK High Court, [2012] EWHC 399 (Comm), Case No: CL-2018-000840.