Evans v Barclays Bank Plc & Ors

Appellants

Daniel Beard KC

Sarah Ford KC

Natasha Simonsen

(Instructed by Slaughter and May, Baker McKenzie LLP, Latham & Watkins (London) LLP, Macfarlanes LLP, Allen Overy Shearman Sterling LLP, Herbert Smith Freehills Kramer LLP, and Gibson, Dunn & Crutcher UK LLP)

Respondent

Victoria Wakefield KC

David Bailey

Sophie Bird

Joshua Pemberton

(Instructed by Hausfeld & Co LLP)

Lord Sales, Lord Leggatt and Lady Rose (with whom Lord Burrows and Lord Richards agree):

1. Introduction

1. Amendments made to the Competition Act 1998 ("the 1998 Act") in 2015 introduced a new and important procedure in cases where breaches of competition law are alleged. Under section 47B of the 1998 Act, collective proceedings, a form of class action, may be brought in the Competition Appeal Tribunal ("the Tribunal"). Anti-competitive behaviour can affect large numbers of people but the loss suffered by any one individual may be too small or hard to establish to justify bringing a separate claim. The new procedure allows proceedings to be brought on behalf of a class of persons who are affected and allows damages to be awarded for the aggregate loss suffered by the class as a whole, without the need to show what loss each individual member of the class has suffered.
2. The statutory regime gives the Tribunal an important gatekeeper function to ensure that the new procedure is used in appropriate circumstances. Collective proceedings may be pursued only if the Tribunal makes a collective proceedings order. In Merricks v Mastercard Inc [2020] UKSC 51; [2021] Bus LR 25; [2021] 3 All ER 285 ("Merricks") this court examined the circumstances in which the Tribunal should make such an order. The present case is concerned with another aspect of the regime: when should the Tribunal direct that the collective proceedings are to be "opt-out" rather than "opt-in" proceedings?
3. Where collective proceedings are brought on an "opt-in" basis, the class representative may pursue claims on behalf of every class member who decides to opt in to join the proceedings. Where collective proceedings are brought on an "opt-out" basis, the class representative may pursue them on behalf of the whole class affected by the alleged breach of competition law except for any member who opts out by notifying the class representative that their claim should not be included. Opt-out collective proceedings are an especially powerful vehicle for seeking redress from alleged wrongdoers because they enable damages to be claimed on behalf of what may be thousands or millions of people who have not made any positive choice to sue and may not even be aware of the litigation. But they also carry the risk that defendants may be driven to settle unmeritorious claims by their sheer size and the heavy costs of defending them.
4. Any collective proceedings order made by the Tribunal must specify whether the proceedings are to be opt-in or opt-out collective proceedings. That decision is governed by rule 79(3) of the Competition Appeal Tribunal Rules 2015 (SI 2015/1648) ("the Tribunal Rules"),…