This case is a landmark decision regarding the UK’s collective proceedings regime. It also confirmed the importance of the discretionary powers afforded to the UK’s specialist competition tribunal in exercising their “gatekeeper” function.
Background
This claim concerned an application for an opt-out collective proceedings order, seeking compensation for losses alleged to have been caused by FX traders sharing information in online chat rooms.
Mr Phillip Evans applied to the Competition Appeal Tribunal (‘CAT‘) in 2019 to combine opt-out collective proceedings claims against several global banks, arising out of the European Commission’s May 2019 settlement decisions regarding the G10 spot FX market. These decisions were memorably known as the “Three Way Banana Split Decision” and the “Essex Express Decision” so named after the online chat rooms where traders exchanged information.
Mr Evans wanted to represent classes of claimants who had entered into the transactions not only with the relevant banks, but also with other financial institutions or in the inter-dealer market. This meant that the group included not only sophisticated financial institutions and large commercial entities, who were alleged to have suffered large losses, but also a large number of individuals and smaller institutions, whose alleged losses where much smaller.
Opt-in or opt-out
An opt-out claim is where all members of the class will be automatically included in the claim without needing to take any active steps. An opt-in claim requires class members to actively sign up to participate in the relevant claim.
It does not matter how slowly you go so long as you do not stop.”
Confucius
Generally, where there is a large group of people with small claims then the opt-out procedure is likely to be the only basis on which it is practicable to bring proceedings. Where a class is made up of large commercial institutions, often pursuing large sums, then opt-in proceedings are more likely to be appropriate.
The banks argued that the claim should only be certified on an opt-in basis, if at all, and pointed to Rule 79(3) of the CAT Rules, which considered the strength of the claim and the practicability of opt-in proceedings. The CAT’s decision of March 2022, agreed with the banks and refused Mr Evan’s application for certification on an opt-out basis.
This was then overturned by the Court of Appeal, but the banks subsequently appealed to the Supreme Court, and it is that decision which is being considered here.
The Supreme Court’s decision
In a unanimous decision, the Supreme Court allowed the banks’ appeals on all grounds. The CAT had been entitled at the certification stage to refuse to grant the proposed class representative, Mr Evans, permission to bring opt-out collective proceedings against the banks.
Factors considered in reaching this conclusion were the strength of the claims for the purpose of opt-out or opt-in. Mr Evans’ claim was regarded as “weak” especially in terms of causation, and these factors weighed heavily against opt-out proceedings. It reaffirmed the general CAT rule that the “the weaker the case, the less justification there is for certifying on an opt-out basis.”
I can’t change the direction of the wind, but I can adjust my sails to always reach my destination.”
Jimmy Dean
Further, the fact that the case might collapse as an opt-in, given that several large financial institutions were unwilling to opt-in, did not mean that opt-out could be used as a “trump card” to save the day. The Supreme Court held that the CAT was entitled to find that as the prospects of succeeding as an opt-in were very low, this was a good reason in itself not to allow the claim on an opt-out basis.
The Supreme Court reiterated that the CAT must start from a point of “neutrality” when considering how to approach proceedings, and that a balance must be found between the competing policy goals of “assisting claimants to obtain redress”, favouring an opt-out approach, and “protecting defendants from oppressive litigation”, suggesting an opt-in approach.
Prior findings
The Supreme Court reconfirmed the common law rule that findings made by another decision-maker are not admissible as evidence of the facts, stemming from the case of Hollington v Hewthorn (1943).
This aspect of the decision could have far reaching consequences. Indeed, technology giant Apple have already applied to the Court of Appeal for permission to appeal the recent decision of Kent v Apple (2025) which saw the CAT accord a “high degree of respect” to a prior Competitions and Markets Authority market study.
Conclusion
The Supreme Court made it clear that the CAT was the “gatekeeper” in collective proceedings and that decisions about whether proceedings should be opt-in or opt-out are within the remit of these specialist tribunals and should be respected as such. Other courts should only interfere in cases of legal error, not just because they might have reached a different conclusion.
Link: Evans v Barclays Bank Plc & Ors [2025] UKSC 48 (18 December 2025)
Expert Evidence prides itself on assisting throughout the legal process where required and is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.
Ask a question about Expert Witness services. We are here to help!
Disclaimer: The above case summary is derived from publicly available information and is not intended to be anything more than a statement of the author’s views on the salient factors of the case. It is not intended and should not be understood to be legal advice of any sort. All views are solely those of the author and no use of the summary should be made without statements being checked against the source of information. Expert Evidence Limited takes no responsibility for the views expressed. The copyright of the summary is owned by Expert Evidence Limited but may be used with written permission which may be forthcoming on application through the contact us page. This news item is not intended to imply or suggest that Expert Evidence Limited was involved in the case, only that it is considered an interesting legal development.
