Phillip Gwyn James Evans v Barclays Bank PLC & Ors
[2023] EWCA Civ 876
Nippon Yusen Kabushiki Kaisha & Ors v Mark McLaren Class Representative Limited
8 December 2023
[2023] EWCA Civ 1471
Court of Appeal
A court ruled that companies facing a group lawsuit don't need permission from the court to talk to people involved in the lawsuit, unless it's unfair. The previous rule was too strict and could have stopped companies from defending themselves properly. Now, the court will decide if it's okay for companies to talk to people in the group, based on each situation.
Key Facts
- •The case concerns a challenge to a Competition Appeal Tribunal (CAT) order prohibiting defendants in collective proceedings from directly communicating with class members without CAT permission.
- •The appellants (shipping companies) sent letters to potential class members before the opt-out period expired, prompting the CAT order.
- •The appellants challenged the order via judicial review, but the Court of Appeal determined the appropriate route was an appeal under section 49(1A)(a) of the Competition Act 1998.
- •The main issue is whether the CAT Rules 2015 impliedly prohibit such communication.
- •A subsidiary issue is whether the CAT made the order using its case management powers.
- •The proceedings are “follow on” proceedings after a European Commission decision finding a cartel amongst the shipping companies.
Legal Principles
Statutory interpretation involves identifying the objective meaning a reasonable legislature intended to convey.
R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3
Implied meanings in statutes must be necessary, not merely reasonable or desirable.
Various cases including Salomon v A. Salomon & Co Ltd [1897] AC 22
The right of appeal under section 49(1A)(a) of the Competition Act 1998 should be construed broadly to minimize judicial review.
Evans v Barclays [2023] EWCA Civ 876
An appeal lies if the decision could causatively affect the quantum of damages, even if not an 'end of the road' decision.
Evans v Barclays [2023] EWCA Civ 876
Litigation privilege is inviolate and cannot be overridden by case management discretion.
R v Derby Magistrates Court Ex p B [1996] AC 487; Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610
Article 10 ECHR protects freedom of expression, subject to limitations prescribed by law and necessary in a democratic society.
European Convention on Human Rights, Article 10
Outcomes
The appeal was allowed.
The Court of Appeal found that the CAT Rules 2015 do not impliedly prohibit defendants from communicating with class members without prior permission. The Court reasoned that such a restriction was not necessary, considering the absence of such a prohibition in other forms of collective litigation, the lack of express wording in the Rules, the potential infringement of litigation privilege and the Canadian experience.
The CAT's order was overturned.
The Court held the CAT's interpretation of the rules was incorrect and that there was no implied restriction on communication. The Court found the CAT did not rely on case management powers as an alternative basis for the order.