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13 February 2020 – Hearing to consider any challenges to the identity or funding of the class representative
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.
6 November 2019 - Case management conference
The first case management conference was held in the Competition Appeal Tribunal (the Tribunal) in London on 6 November 2019. A case management conference is a procedural hearing at which the Tribunal gives directions on how the next stages of the claim should proceed. The order setting out these directions in full, and the transcript of the hearing, are available here or on the Tribunal website at https://www.catribunal.org.uk/cases/13297719-michael-ohiggins-fx-class-representative-limited. In summary:
Any confidential and/or commercially sensitive information will only be provided to named individuals within a ‘confidentiality ring’, ordered by the Tribunal. These documents (which include those referred to at 1 and 2 above) will not be publicly available.
- The banks will provide the Class Representative with confidential versions of the European Commission decisions dated 16 May 2019. Each bank will also provide the Class Representative with sample of contracts for clients who have traded foreign exchange through its European desks.
The Class Representative will provide the banks with certain additional documents about how the claim is being funded and how the banks’ costs will be met if the claim is unsuccessful.
- There will be a hearing on 13 and 14 February 2020 to determine any objections which the banks have to the Class Representative, or its funding arrangements.
- The main class certification hearing has been provisionally scheduled for the beginning of 2021.
29 July 2019 - The claim was filed with the Competition Appeal Tribunal
- 13 July 2020 – Further preliminary issues hearing
- 23 October 2020 – Case management conference
- 1 March 2021 – CPO application hearing
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