Court of Appeal Rules on Opt-In vs. Opt-Out Collective Action in Evans v Barclays Bank Case

Citation: [2023] EWCA Civ 876
Judgment on

Introduction

In the recent case of Phillip Gwyn James Evans v Barclays Bank PLC & Ors, the Court of Appeal (Civil Division) tackled several pivotal legal issues within the UK collective action regime. The case addresses the novel aspects of collective actions, particularly in relation to the Consumer Rights Act 2015 and the subsequent amendments to the Competition Act 1998. This article dissects the judgment handed down by the Court of Appeal, examining the key legal principles applied and the outcomes of the appeal on the various contention points.

Key Facts

The context involves two collective action claims brought by Mr Evans (“Evans”) and Michael O’Higgins FX Class Representative Ltd (“O’Higgins”), both seeking certification from the Competition Appeal Tribunal (CAT) to act collectively for a class of claimants against banks involved in FX spot trading infringements. The central legal scuffle pertained to whether the claims should proceed on an opt-in or opt-out basis and which one of the two claimants should be appointed as class representative. The CAT had ruled for an opt-in certification, with Evans as the preferred class representative.

The Court of Appeal engaged with a plethora of legal principles impacting collective actions:

  • Statutory Appeal versus Judicial Review: The Court highlighted the broad appellate jurisdiction granted under section 15(3) of the Senior Courts Act 1981. It made it clear that the Court of Appeal holds the full authority of the original tribunal (CAT) for purposes related or incidental to the handling of the appeal, allowing it to amend or execute any judgment as if it were the CAT itself.
  • Collective Proceedings Order (CPO): The Court affirmed the appellate court’s ability to modify a CPO, challenging the position that the CAT operated independently of the Senior Courts Act 1981 and was solely empowered to issue CPOs.
  • Principles of Access to Justice, Vindication of Rights, and Disincentive to Unlawful Behaviour: Access to justice is not limited to consumer claims but extends to facilitating broader classes of claimants. It encompasses practicality and proportionality, tending to favor opt-out where individual proceedings would be impractical.
  • Practicability of Opt-In vs. Opt-Out: The Court differentiated between the CAT’s judgment call (which it may refrain from interfering with) and the CAT’s analytical process regarding the practicability and viability of opt-in proceedings, which it scrutinized.

Outcomes

The Court of Appeal directed that:

  • The appeal regarding the opt-in versus opt-out issue was allowed, differing from the CAT’s ruling.
  • The appeal challenging the CAT’s selection of Evans over O’Higgins as class representative was dismissed, agreeing with the CAT’s evaluation.
  • The applications for judicial reviews were denied, upholding the CAT’s comprehensive authority in case management.
  • The matter was remitted back to the CAT for additional deliberation in light of its ruling and the potential implications of the Supreme Court judgment in PACCAR, which questioned the enforceability of specific litigation funding arrangements.

Conclusion

The Court of Appeal has delivered a comprehensive examination of the legal standards governing collective actions within the UK legal framework. It has provided valuable clarity on the jurisdiction of the appellate court when dealing with appeals from statutory tribunals such as the CAT. In reinforcing the principles of access to justice and the broad application of the opt-out mechanism for collective redress, the Court of Appeal ensures the effective vindication of rights and furthers the disincentive for anti-competitive conduct. This judgment stands as a significant milestone in the development of collective proceedings in the UK, shaping the procedural landscape for forthcoming cases in this domain.

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