“We fought the law (and the law won)”
Today, 18 December 2025, the Supreme Court delivered its judgment in FX Claim UK, the collective action brought by Phillip Evans against eight banking groups over alleged foreign exchange manipulation. The Court restored the Competition Appeal Tribunal's (CAT) original judgment from March 2022 which certified the claims to proceed on an opt-in basis only. Anthony Maton shares his immediate reaction.
“Unsurprisingly, I find the FX Judgment today of the Supreme Court (SC) profoundly disappointing. Phil Evans will now consider his options, but standards for collectives look very different.
Headline - the Court of Appeal received a good kicking and the SC determined that the decision the CAT made was within its discretion.
Despite all the evidence put before the CAT showing the theory of harm that linked the actions of a number of traders in a number of chat rooms to wider market harm, the CAT was not persuaded and it was this causation failing that the SC hung its hat on in determining that the claim was weak, even though these were follow on claims from Commission decisions where the banks were found to have infringed the law.
- Most significantly, for the regime, the SC concludes that “if a claim is weak, that militates against affording claimants the advantages of an opt out process”- so we are left in a world where if a claim is not struck out – and here the Defendants declined to apply & the CAT to rule to strike out – there is still an (uncertain) merits test (cf paras 59/60 of Merricks) to be applied to opt-out proceedings.
- So, to be sure of opt out certification, claimants will need claims which can be viewed by the CAT as ‘strong’ - whatever that means - at the time of certification.
- On practicability the SC is clear that “if it is practicable… to bring opt-in proceedings, it is unlikely to be proportionate” to have opt-out - so mass consumer claims for small amounts will be opt-out (116) cf large businesses with large claims practicable so nothing/ opt-in (117).
- In between those poles an “objective” assessment is required, taking into account differences in class composition – in FX, notwithstanding the very large numbers of SMES for whom litigation is accepted to be impractical, the presence of a few big players rules out opt-out.
- So, again, difficult to determine where the boundaries of the practicability test actually sit.
- Ultimately then opt out/ opt in decisions are for the discretion of the CAT, but within more limited – and unclear – tramlines.
The end result is that, as of today, those who suffered loss from these infringements in the US, and the big beasts in Europe (Allianz among others) have recovered damages whilst UK SMEs have not.
So, wither the DBT Review? Ministers are engaged in ensuring that the opt-out regime delivers access to justice, by reversing the previous unhelpful SC PACCAR Judgment. They now need to go further by legislating to blunt the harm that the FX ruling causes.
Where it is clear – as here – that there has been unlawful conduct by corporates, the public interest is served by enabling these cases to be heard by default as opt-out claims. The law should make that clear, and Ministers should build on the regime by adding such provisions.”