Have The "Litigation Leviathans" Been Tamed Or Unleashed? The Court Of Appeal's Judgments In Trucks And Forex

• Law Firm: Herbert Smith Freehills
• Subject Matter: Antitrust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Trials & Appeals & Compensation
• Author: Mr Stephen Wisking, Kim Dietzel, Joe Williams, Naomi Reid and Joe Moorcroft-Moran
• Published date: 09 August 2023

On 25 July 2023, the Court of Appeal handed down two seminal collective proceedings judgments in the Trucks and Forex proceedings:

• UK Trucks Claim Limited v Stellantis NV (formerly Fiat Chrylser Automobiles NV) & Others and Traton SE &amp Others v Road Haulage Association Limited [2023] EWCA Civ 875 (Trucks); and
• Mr Phillip Gwyn James Evans v Barclays Bank Plc & Ors and Michael O'Higgins FX Class Representative Limited v Barclays Bank PLC & Ors [2023] EWCA Civ 876 (Forex).

In the Forex judgment, Lord Justice Green noted that in the collective proceedings regime the CAT has the task of "bringing order and control to what otherwise risks the unleashing of litigation leviathans". A question to be debated in future cases will be whether the guidance from the Court of Appeal in these two cases helps or hinders that task.

Both cases involved appeals from certification judgments of the Competition Appeal Tribunal (CAT), both involved multiple Proposed Class Representatives (PCRs) seeking to take "carriage" of the same or similar claims and both were handed down by identically constituted Courts (the Chancellor of the High Court (Sir Julian Flaux), Green LJ, and Snowden LJ). The Court of Appeal judgments are likely to have a significant impact on the collective proceedings regime in a number of ways. In particular, the judgments assist in clarifying: (i) the test for determining whether collective proceedings should be certified on an opt-in or opt-out basis; (ii) the test for determining carriage and how the carriage process should be conducted; and (iii) how to resolve potential conflicts of interest within the class. The judgments also contain a number of other important statements (some of which are obiter) which may have implications for the collective proceedings regime.

By way of brief background on the appeals:

• In Trucks, which concerns follow-on claims from a European Commission finding of infringement relating to anti-competitive exchanges between truck manufacturers, the CAT had held at certification that the Road Haulage Association's (RHA) application for an opt-in Collective Proceedings Order (CPO) should be certified, and that, whilst UK Trucks Claim Limited's (UKTC) application for an opt-out CPO did meet the certification criteria it would be preferable to only certify one claim and that the RHA's application was preferred. This judgment was appealed on several grounds by UKTC and two of the respondents to the RHA's application.
• In Forex, which concerns follow-on claims from a European Commission finding of infringement relating to anti-competitive exchanges between foreign exchange traders at certain banks, the CAT had held at certification that neither the application of Mr Phillip Evans (Evans) nor the application of Michael O'Higgins FX Class Representative Limited (O'Higgins) should be certified on an opt-out basis, but that it would be willing to certify an application on an opt-in basis. The CAT also held that, if it did have to certify one application, it would have preferred the Evans application. This judgment was appealed by both PCRs.

Jurisdiction to appeal / judicial review

In both Trucks and Forex, the Court of Appeal grappled with the question of whether the issues in dispute should be dealt with by way of appeal, or judicial review. This is because the scope to appeal decisions of the CAT under section 49(1A) of the Competition Act 1998 is unclear (it states that decisions "as to the award of damages" are appealable), and therefore the appellants in both proceedings had brought parallel appeals and judicial review applications, with the court sitting as both the Court of Appeal and a Divisional Court of the High Court.

The Court of Appeal held in both cases that the right of appeal should be construed broadly in order to minimise the scope of judicial review, partly for reasons of judicial efficiency and to avoid the unnecessary resource and cost of judicial review applications in future.

In both Trucks and Forex, the Court of Appeal therefore heard all of the issues as appeals, rather than as part of a judicial review application, including significantly hearing the carriage issue as an appeal (although in Trucks the Court of Appeal ultimately refused permission to appeal on the carriage issue). In Forex the Court of Appeal held that a choice as to "who" is best suited to advance a claim for damages is also 'as to' damages. The Court of Appeal noted that it wanted to avoid a result whereby the issue of the scope of claim went to an appeal but the pure carriage issue went to judicial review.

These judgments therefore provide further clarity on when CAT decisions should be challenged by way of appeal, rather than judicial review, and may serve to limit the practice of protective judicial review applications being issued in future.

Carriage

The carriage decision

In Forex, the CAT had initially held that it would have certified Evans over O'Higgins if it had to choose between the two PCRs on an opt-out basis. O'Higgins appealed this carriage...