The Supreme Court has upheld the Competition Appeal Tribunal’s decision that a £2.7bn claim against banks over alleged foreign exchange rigging cannot proceed on an opt-out basis. 

Lord Sales, Lord Leggatt and Lady Rose, with whom Lord Burrows and Lord Richards agreed, said the Court of Appeal – which had overturned the tribunal’s decision – ‘should not interfere’ with the CAT’s decision ‘simply because it might have arrived at a different conclusion if it had been conducting the exercise’.

In Evans v Barclays Bank Plc and others, the CAT decided that the collective proceedings which Phillip Evans, a former policy adviser at Which?, was seeking to bring as class representative should not be brought on an opt-out basis as it considered the claim ‘so weak that it was liable to be struck out’. The Court of Appeal overturned the decision and remitted Evans’ application to the tribunal. The appellants, Barclays and other leading banks, appealed to the Supreme Court.

The Supreme Court judgment said: ‘The Court of Appeal had no proper basis for interfering with the tribunal’s assessment of the strength of the claim and with the weight that the tribunal gave to that assessment in choosing between opt-in and opt-out.’

It added: ‘It was neither illogical nor unfair to Mr Evans for the tribunal…to take into account its assessment of the claim as weak in deciding that he should not be allowed to proceed on an opt-out basis. The tribunal had been able to analyse the claims and the difficulties which they faced on the issue of causation in considerable depth.'

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The justices said that the tribunal majority was correct to regard that ‘the pleaded case on causation was both intrinsically weak and that it lacked the necessary particularity’ was ‘”a powerful reason against certifying on an opt-out basis”’.  The CoA’s views on the strength of the claim were ‘misplaced’, they said. 

‘It was inappropriate for the Court of Appeal to engage in making its own assessment of the merits when the tribunal’s approach and decision could not be impugned - all the more so when the Court of Appeal relied heavily on material which had not been and could not have been considered by the tribunal. The Court of Appeal should have left the evaluation of the strength of the claim to the specialist body entrusted with that task.'

Allowing the appeal and reinstating the tribunal’s decision, the Supreme Court said: ‘It was not for the Court of Appeal to undertake its own assessment and to substitute its view for that of the tribunal because it disagreed with the inferences drawn from the evidence by the majority and preferred the opinion of the minority.

‘Rather, it should have followed its earlier guidance given in [Le Patourel v BT Group plc [2022]] and refrained from interfering with the conclusions of the specialist tribunal which, under the collective proceedings regime, has been tasked with making the relevant evaluation,unless there was an error of law in the tribunal’s approach. The Court of Appeal did not identify any such error of law.’