Evans v Barclays Bank & Ors

The underlying claim was an application for an opt-out collective proceedings order, seeking compensation for losses said to have been caused by FX traders sharing information in online "chat rooms".

The Supreme Court allowed the Banks' appeal and restored the decision of the Competition Appeal Tribunal, by which the CAT had refused to certify the claim on an opt-out basis. The Supreme Court held that CAT was entitled to find that the prospects of the claims succeeding were very low and that this was a powerful reason not to certify the claim on an opt-out basis [86]. The leveraging effect of opt-out certification can be used oppressively or unfairly [89]. Where claims have weak merits, it may not be appropriate to confer the advantages of opt-out proceedings [91].

Further, the CAT's conclusions as to the practicability of opt-in proceedings were reasonably open to it [127]. The collective proceedings regime was designed to deal with a wide spectrum of cases, including, at one end of the spectrum, Merricks-type claims where a large number of claimants bring claims for a relatively low sum [116]. At the other end of the spectrum may be large commercial organisations, well able to look after themselves, with claims large enough to make proceedings commercially viable [117]. In this case, it was "difficult to see why the financial institutions and large entities with substantial claims should be allowed to proceed by way of opt-out collective proceedings" [124].

Finally, the Supreme Court affirmed the common law rule that findings made by another decision-maker are not admissible as evidence of the facts found [144]. This rule, known as the rule in Hollington v Hewthorn, is based on principles of fairness and it does apply in the CAT (contrary to the judgment of the Court of Appeal below which had held that the CAT should not be "hidebound" by the rule) [152]. In the present case, the rule in Hollington v Hewthorn applied in its "strong form". The Court of Appeal had erred in relying on a decision of the European Commission against Credit Suisse ("Sterling Lads") notwithstanding that it post-dated the CAT's decision and was addressed to a different bank.

Natasha Simonsen acted for the appellant banks, led by Daniel Beard KC and Sarah Ford KC.

The judgment is available here.