The Competition Appeal Tribunal rules out early determination of ‘carriage dispute’

The Competition Appeal Tribunal (CAT) has issued its first ruling in the FX Claim UK opt-out collection action, holding that it should determine whether Phillip Evans or Michael O’Higgins FX Class Representative Ltd is more suitable to act as class representative during the main substantive hearing of both applications in March 2021. 

The judgment arises from a case management hearing on 13 February 2020 in which the CAT considered the future steps in FX Claim UK alongside a similar application by Michael O’Higgins FX Class Representative Ltd. Due to the similarities between the two applications, the CAT will need to decide which is more suitable to act as class representative. Competing applications for collective actions are typically described as giving rise to a ‘carriage dispute’.   

During the February hearing it was submitted by both applicants that the carriage dispute should be resolved as a preliminary issue before the main certification hearing, primarily on grounds of efficiency. None of the banks opposed and some supported the applicants’ position. The CAT concluded in its judgment of 6 March 2020 that, because of the novel questions raised by the carriage dispute, it should be determined at the substantive hearing of both applications in March 2021. 

Responding to the judgment, Mr Evans commented: “We sought to have the question of carriage resolved at an early stage in the proceedings, but we recognise that this raises novel issues in what is still a relatively new regime.  We accept the Tribunal’s decision.”

Hausfeld Partner David Lawne added: “Our focus is now on preparing for the main substantive hearing next year.”

Full judgment
February 2020 hearing

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