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. The certification hearing was held from 12-16 July 2021, before three Tribunal members.
On 31 March 2022, the Tribunal handed down its judgment. The majority (two of the three Tribunal members) decided that they were not willing to certify the claim on an opt-out basis, which would mean class members are included in the claim unless they choose not to be. The majority held that the application should be stayed, with permission to reformulate the claim on an opt-in basis (where class members must actively sign up at the outset of the claim, in order to participate). In a dissenting judgment, the final Tribunal member held that the claim was suitable to be brought on an opt-out basis.
The UKFX claim was filed in July 2019. 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’. Although it was not binding in light of their findings on opt-in/opt-out, the Tribunal indicated (without detailed reasoning) that it marginally preferred Mr Evans’ application.
The full judgment is available here.
Mr O’Higgins, as sole director of Michael O’Higgins FX Class Representative Limited, intends to appeal and will provide a further update to class members in due course.