A preliminary issues hearing took place before the Tribunal on 13 February 2020.The hearing was originally listed to consider any challenges by the proposed defendants to the identity or funding of Michael O’Higgins FX Class Representative Limited. At the hearing, the proposed defendants confirmed that, following discussions between the parties, they had no objections to the identity or the funding and insurance arrangements put in place by Michael O’Higgins FX Class Representative Limited to raise.
In addition, the Tribunal expanded the agenda to consider appropriate case management orders in relation to a subsequent CPO application filed by Mr Phillip Evans on 17 December 2019, who seeks to represent broadly the same class bringing the same claim as Michael O’Higgins FX Class Representative Limited. In particular, the Tribunal was addressed on whether it should hold a preliminary hearing to select either Michael O’Higgins FX Class Representative Limited or Mr Evans to represent the class. Such hearings are referred to in Canadian class actions as a “carriage dispute”.
At the hearing, Daniel Jowell QC for Michael O’Higgins FX Class Representative Limited led the submissions that the carriage dispute should be heard and resolved as soon as practicable. All parties were either in agreement with this proposal or (in the case of some of the proposed defendants) neutral as to timing.
The Tribunal considered the issue carefully but considered that, due to the novelty of the regime and the outstanding question of the test for certification (which is being considered by the Supreme Court in May 2020), the carriage dispute should be heard at the same time as the application for certification, in March 2021. A copy of the judgment is available here.