United Kingdom

On behalf of the team

In July 2021, the Competition Appeal Tribunal (CAT) examined the battle between two competing mass claim representatives for permission to conduct an action for damages during a five-day hearing. These are proceedings against various banks, including JPMorgan Chase, Barclays and UBS because of their role in the spot forex trading cartel[1]. This requires the CAT to pioneer in the context of the UK class action regime because it is the first time that the CAT is asked to render a decision on which of the two potential mass claim representatives may conduct the proceedings. Both aim to apply an opt-out regime in which injured parties automatically participate, unless they indicate that they do not wish to do so. It is therefore impossible for both claims to result in actual proceedings and the CAT will therefore have to choose which of the two will be allowed to continue.

The two potential representatives are Michael O’Higgins, former head of the UK pension regulator, and Phillip Evans, former chairman of the Competition and Markets Authority (CMA) inquiry group.[2] Both want to represent thousands of institutional investors and act on their behalf in order to recover the damage they have suffered from the banks.

During the hearing, the suitability of both claims was discussed, including in the areas of litigation planning, funding, and definitions of the group to be represented. O’Higgins’ group managed to obtain more financing than Evans’ group, but Evans argued that this would not necessarily mean that O’Higgins’ claim for damages is more suitable than his and that his financing would in any event be sufficient.[3] The banks defended their position, inter alia, by asserting that, in so far as one of the proceedings were even permitted, only an opt-in regime would be appropriate in this case because of the nature of the group and the value of the possible claim. According to the banks, the opt-out regime as introduced in the UK legal system was not intended for large and well-to-do companies like the injured parties in this case.[4] As far as possible representatives are concerned, an opt-in regime is in fact not suitable because it entails practical difficulties such as having to approach and contact potential injured parties, which will take a lot of time.

The group of injured parties to be represented will include pension funds, asset managers and hedge funds, and the claim for damages to be submitted is estimated at around seven billion euros.

[1] European Commission press release, ‘Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel’, 16 May 2019.

[2] Case references are 1329/7/7/19 Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others and 1336/7/7/19 Mr Phillip Evans v Barclays Bank PLC and Others.

[3] According to MLex, ‘Rival claimants for forex-rigging damages lay out core arguments for trial suitability’, 12 July 2021.

[4] According to MLex, ‘UBS insists forex-cartel mass damages claims only viable as ‘opt in’ actions, 14 July 2021.