The UKFX claim was filed in July 2019. Before a collective action can proceed, the Tribunal must authorise the proposed class representative and certify the claims as eligible to be included in collective proceedings. In December 2019, a subsequent application was filed by Mr Phillip Evans, who is seeking to bring a very similar claim on behalf of a similar class. Where there is more than one applicant proposing to represent the class, the Tribunal must decide which proposed class representative would be most suitable. This is referred to as a ‘carriage dispute’.
The certification hearing and carriage dispute took place over five days, from 12 to 16 July 2021. The Tribunal was chaired by The Honourable Mr Justice Marcus Smith, with Professor Anthony Neuberger, a professor of Finance at Cass Business School at the City University of London, and Mr Paul Lomas, a solicitor and former partner at Freshfields Bruckhaus Deringer LLP, sitting as Ordinary Members.
The hearing opened with Michael O’Higgins and Phillip Evans giving a short presentation before answering questions from the Tribunal. This was followed by formal legal case openings. On the second day, the experts were cross-examined, answering questions to explain their proposed methodologies to assess the losses which class members suffered as a result of the banks’ anticompetitive conduct. The remainder of the hearing was devoted to legal submissions at which counsel for Michael O'Higgins FX Class Representative Limited, Phillip Evans and the banks all put forward their respective arguments as to whether and how the claims should be certified.
We now await the Tribunal’s judgment on whether the UKFX claim will be certified. Although there is no formal deadline for the judgment, we anticipate that it will be handed down in Autumn 2021.