Evans v Barclays Bank Plc and others [2025] UKSC 48

Mr Evans sought opt-out collective proceedings for damages arising from FX trading infringements found by European Commission decisions. The Supreme Court allowed the appeal, reinstating the Tribunal’s refusal to certify opt-out proceedings, holding that claim weakness and practicability of opt-in proceedings were properly weighed against opt-out certification.

Facts

Mr Phillip Evans applied to commence collective proceedings under section 47B of the Competition Act 1998, seeking damages for losses caused by infringements found in two European Commission decisions (Three Way Banana Split and Essex Express). These decisions concerned FX spot trading where traders exchanged commercially sensitive information via private chatrooms. Mr Evans sought certification of opt-out collective proceedings on behalf of two classes: Class A (persons dealing directly with defendants during infringement periods) and Class B (persons suffering ‘umbrella effect’ losses from transactions with other institutions). The proposed class included between 14,000-42,000 members with indicative damages of approximately £2.155 billion.

Tribunal Proceedings

The Competition Appeal Tribunal considered the application over five days with extensive expert evidence. The Tribunal raised concerns about causation, finding the claims as pleaded were liable to be struck out but declined to do so at that stage. The majority refused to certify opt-out proceedings, finding both the weakness of claims and practicability factors pointed strongly against opt-out certification. The Court of Appeal overturned this decision, finding the Tribunal erred in its approach.

Issues

Four main issues arose: (1) Whether the Tribunal erred in relying on claim weakness as a factor against opt-out proceedings; (2) Whether the Tribunal erred in assessing practicability of opt-in proceedings; (3) Whether principles of ‘facilitating vindication of rights’ and ‘deterring wrongdoers’ favour opt-out proceedings; (4) Whether the Sterling Lads ordinary decision against Credit Suisse was admissible.

Judgment

The Supreme Court (Lord Sales, Lord Leggatt and Lady Rose, with Lord Burrows and Lord Richards agreeing) allowed the appeal and reinstated the Tribunal’s decision.

Strength of Claims

The Court held the Tribunal was entitled to treat claim weakness as a powerful factor against opt-out certification. The Court stated:

“If a claim is very weak it is likely to be more difficult to justify resort to the opt-out procedure as striking a fair procedural balance between the claimants and the defendant(s).”

The Court rejected the Court of Appeal’s view that merits are generally a neutral factor, holding:

“as a general rule it seems to us that the weaker a case, the less justification there is for certifying on an opt-out basis.”

Practicability

The Court endorsed the Tribunal’s objective assessment approach to practicability. The Tribunal had identified distinct groups: large financial institutions with substantial potential claims, and smaller entities with modest claims. The majority concluded it should not allow the small-claim sub-class to alter the practicability conclusion:

“That would be to allow the tail to wag the dog.”

Access to Justice

The Court rejected the suggestion that access to justice and deterrence automatically favour opt-out proceedings:

“Access to justice does not, in our judgment, mean that every case that can only be brought on an opt-out basis must be permitted to proceed on that basis. Opt-out certification is not a certification basis of last resort.”

Sterling Lads Decision

The Court held the Sterling Lads ordinary decision was inadmissible against defendants who were not addressees of that decision, applying the principle in Hollington v Hewthorn. The Court stated:

“It would in those circumstances be fundamentally unfair to admit the findings made by the Commission as evidence against the appellants.”

Implications

This judgment significantly clarifies the framework for choosing between opt-in and opt-out collective proceedings in competition law cases. It establishes that: (1) there is no presumption in favour of opt-out proceedings; (2) claim strength operates on a sliding scale affecting certification decisions; (3) the Tribunal’s case management discretion deserves appellate deference; (4) sophisticated commercial claimants cannot bundle with smaller claimants to gain opt-out advantages; and (5) Commission findings against third parties remain inadmissible under Hollington v Hewthorn principles. The decision reinforces the gatekeeper function of the Tribunal in protecting defendants from potentially oppressive opt-out litigation while balancing access to justice considerations.

Verdict: Appeal allowed. The Court of Appeal’s decision was set aside and the Competition Appeal Tribunal’s decision to refuse Mr Evans’ application for a collective proceedings order on an opt-out basis was reinstated.

Source: Evans v Barclay’s Bank and others (UKSC/2023/0173)