Court of Appeal allows 'opt out' foreign exchange collective action against six banks

The collective action was brought by Phillip Evans, former inquiry chair at the Competition Markets Authority. Evans is represented by Hausfeld, a firm specialising in antitrust litigation.

In a press release the firm said: "This ruling overturns the Competition Appeal Tribunal’s (CAT) earlier decision to limit the claims to ‘opt-in’ proceedings.  In addition, the Court of Appeal dismissed an appeal by a competing applicant for certification, Michael O’Higgins FX Class Representative Ltd, thereby confirming the CAT’s decision that Mr Evans should have carriage of the claims.

"The result of the judgment is that claims on behalf of tens of thousands of class members with estimated value approaching £2.7 billion can now proceed against the 6 international banks identified as being involved in the anti-competitive conduct relating to FX. This is the first opt-out collective action primarily on behalf of businesses that has been allowed to proceed by the courts."

Evans commented: “I am delighted with the Court of Appeal's decision to allow our claims to proceed on an opt-out basis. This ruling acknowledges the practical difficulties of opt-in legal proceedings and confirms the access to justice principle which underpins the collective action regime. The opt-out approach is crucial to ensure that claims may be pursued on behalf of all affected individuals and businesses.

"I am also pleased that the CAT’s carriage decision was upheld and look forward as class representative to championing the interests of those affected by the banks’ misconduct.”

In December 2019, Evans filed an application to bring opt-out collective proceedings against Barclays, Citibank, The Royal Bank of Scotland/NatWest, JPMorgan, UBS and MUFG Bank. The banks participated in unlawful foreign exchange spot trading cartels and later admitted their misconduct to the European Commission, which fined them more than €1.1 billion. 

The Hausfeld press release says that Evans "seeks to represent the interests of tens of thousands of participants in the foreign exchange market by claiming damages for the harm alleged to have been caused by the banks’ unlawful conduct, which took place between 2007 to 2013. The total damages sought in the claims are estimated to approach £2.7 billion."