FX collective action: Phillip Evans v Barclays Bank PLC and Others
Hausfeld acts for Phillip Evans, formerly an Inquiry Chair at the CMA and a Senior Policy Adviser at Which?, in his application to pursue an opt-out collective action against six global banks seeking damages in respect of unlawful practices in the FX market.
The claim arises from two decisions of the European Commission adopted on 16 May 2019 in which the Commission found that the banks exchanged commercially sensitive information and trading plans and occasionally coordinated their trading strategies, contrary to EU competition law. The Commission imposed fines of over €1 billion. The European Commission’s full press release can be read here.
Mr Evans has applied to the UK’s Competition Appeal Tribunal for permission to bring collective proceedings on behalf of two “classes” of persons comprising participants in the FX market who entered into spot trades and/or FX outright forward transactions in the EEA involving the so-called “G10 currencies” with entities in the Barclays, Citigroup, JPMorgan, MUFG Bank, RBS/NatWest, UBS banking groups, and/or other relevant financial institutions, between 2007 and 2013.
Mr Evans seeks the Tribunal’s permission to pursue opt-out proceedings under which UK-domiciled members of the proposed classes will automatically be included in the proposed classes unless they opt out and foreign domiciled class members, whilst not automatically included, will be entitled to opt in.
The claim is factually and legally complex given the size and global nature of the FX market and the scope of the proposed classes. It was included in The Lawyer’s top 20 cases of the year for 2020.
Hausfeld has a wealth of experience in collective actions and is co-lead counsel in the US FX class action, which has so far recovered billions of dollars for those affected by FX misconduct in the US.
Mr Evans is also supported by a consultative panel chaired by Lord Carlile of Berriew QC, a crossbench member of the House of Lords who was previously a part time judge in the High Court and a member of the Competition Appeal Tribunal.
Mr Evans and Hausfeld are working with a specialist litigation funder, Bench Walk Advisors, to bring the claim.
Another party, Michael O’Higgins FX Class Representative Limited, made a similar application which also sought to combine follow-on claims for damages arising from the infringements identified in the Commission’s decisions. As such, the Tribunal had to consider which of Mr Evans and Michael O’Higgins FX Class Representative Limited would be the most suitable representative to act as class representative. This is known as a ‘carriage’ dispute and, whilst a common feature of other jurisdictions with mature class action regimes, this is the first time that it has been considered by the Tribunal.
- On 11 December 2019, an application to commence an opt-out collective action, “FX Claim UK” as described above, was launched at the CAT.
- On 6 March 2020, the Tribunal handed down a judgment in which it decided that the carriage dispute should be resolved at the same time as the main certification hearing.
- Following a case management conference on 15 January 2021, the Tribunal listed the certification hearing for five days between 12 and 16 July 2021.
- On 31 March 2022, the CAT decided that the case should only proceed on an opt-in basis for class members. That meant the case wasn’t viable. On carriage, the CAT preferred the Evans claim over the O’Higgins claim.
- Both decided to appeal the CAT’s decision to the Court of Appeal which was heard during a four-day hearing from 25 to 28 April 2023.
- On 25 July 2023, the Court of Appeal ruled that FX Claim UK, the collective action brought by Phillip, can proceed as opt-out collective proceedings. The ruling overturns the CAT’s earlier decision to limit the claims to 'opt-in’. In addition, the Court of Appeal dismissed an appeal by the competing applicant for certification, thereby confirming the CAT’s decision that Mr Evans should have carriage of the claims. This is the first opt-out collective action primarily on behalf of businesses that has been allowed to proceed by the courts.
- The Court of Appeal has handed down a revised version of its judgment, which supersedes the version handed down on 25 July 2023. The revised judgment does not alter the reasoning in the earlier judgment and confirms the Court of Appeal’s authority to make or vary a CPO.
There is a dedicated website for this action, www.fxclaimuk.com, which is regularly updated.