Allergan PLC & Ors v The Competition and Markets Authority
[2024] EWCA Civ 1023
Phillip Gwyn James Evans v Barclays Bank PLC & Ors
9 November 2023
[2023] EWCA Civ 876
Court of Appeal
Several companies sued banks for cheating them in currency trading. A judge said the companies couldn't sue together unless they all agreed to join the lawsuit, making it hard for them to win. A higher court said the judge was wrong; the companies *can* sue together.
Key Facts
- •Appeal from the Competition Appeal Tribunal (CAT) concerning two rival claims for certification of collective actions under the Consumer Rights Act 2015 and Competition Act 1998.
- •Claims against banks for damages resulting from an unlawful exchange of competitively sensitive pricing and other data (FX spot trading cartel).
- •Two rival claims, Evans and O'Higgins, competed for certification as class representatives.
- •CAT initially granted permission for revised applications on an opt-in basis.
- •Total claim approaches £2.7 billion.
- •The case relied on EU Commission decisions ('Three Way Banana Split', 'Essex Express') finding infringements of Article 101(1) TFEU.
- •Subsequent Commission decision ('Sterling Lads') provided more detailed analysis, raising admissibility and probative value questions.
- •CAT majority expressed concern about establishing causation between the breach and alleged loss.
- •CAT majority decided against striking out claims but ordered opt-in proceedings due to weak merits and anticipated insufficient take-up.
- •Minority dissented, arguing for opt-out proceedings to ensure access to justice.
- •Appeal raised questions regarding the CAT's jurisdiction, the test for striking out claims, criteria for opt-in vs. opt-out, and selection of class representatives.
Legal Principles
Statutory right of appeal from CAT decisions on points of law concerning damages.
Section 49(1A)(a) Competition Act 1998
CAT's power to dismiss non-viable claims of its own motion.
CAT Rules and Merricks v Mastercard Inc [2020] UKSC 51
Criteria for determining opt-in vs. opt-out proceedings, including strength of claim and practicability.
CAT Rule 79(3)
Criteria for selecting between rival class representatives, considering factors like claim strength and funding.
CAT Rules and case law
Court of Appeal's power to amend or make a collective proceedings order (CPO).
Section 15(3) Senior Courts Act 1981; CPR 52.20(1)
Outcomes
Appeal allowed in relation to opt-in vs. opt-out.
CAT erred in prematurely assessing merits as weak and in finding opt-in practicable despite evidence suggesting otherwise. The court found the CAT applied an overly strict test for strike-out and wrongly assessed the merits as weak.
Appeal dismissed in relation to striking out and class representative selection.
CAT acted within its case management discretion to defer strike-out and its choice of class representative was reasonable.
Remittal to CAT for further decision, considering implications of PACCAR decision.
To address the opt-out issue and the potential impact of PACCAR on the viability of the claims.
Similar Cases
Visa Inc & Ors v Commercial and Interregional Card Claims I Limited & Anor
[2024] EWCA Civ 218
Walter Hugh Merricks CBE v Mastercard Incorporated & Ors
[2024] EWCA Civ 759
Justin Gutmann v Apple Inc & Ors
[2024] EWCA Civ 702
The All-Party Parliamentary Group on Fair Business Banking, R (on the application of) v The Financial Conduct Authority
[2023] EWHC 1616 (Admin)