Supreme Court tightens the reins on opt-out collective proceedings in Evans

Evans v Barclays Bank Plc & Others [2025] UKSC 48 (Evans) is the latest Supreme Court (UKSC) decision concerning the competition collective proceedings regime introduced by the Consumers Rights Act 2015.

 

The decision is comparable to the Supreme Court’s 2020 decision in Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51 (Merricks) in terms of its systemic importance to the collective proceedings regime. Evans does not retreat from Merricks’ rejection of a merits threshold at certification, but it does recalibrate the availability of opt-out proceedings at the subsequent opt-in/opt-out stage.

 

While Merricks emphasised the low threshold for certification, Evans reinforced the Tribunal’s discretion to refuse opt-out certification where the pleaded claim is weak and opt-in proceedings are considered practicable.

 

Opt-out proceedings under the Consumer Rights Act 2015 represent the only US-style class action route within the UK legal system, whereby a representative may bring claims on behalf of a defined class without the affirmative participation of each class member. The opt-in alternative is more closely analogous to group litigation under CPR Part 19, requiring individual claimants to take positive steps to participate.

 

 

In Evans, the UKSC was asked to determine whether the Court Appeal had erred in concluding that the Competition Appeals Tribunal (the CAT) was wrong to refuse  certification of Mr Evans’ claim on an opt-out basis, allowing the claim to proceed on an opt-in basis subject reformulating the claim.

 

Evans concerned a follow-on damages action under s 47A of the Competition Act 1998 arising from two European Commission (the Commission)  infringement decisions in 2019. A follow-on claim is a claim for damages following a finding of breach by a competition authority (in this case the Commission’s 2019 decisions). The infringements involved the exchange of commercially sensitive information by traders employed by the respondent banks in relation to Foreign Exchange (FX) spot trading of currencies.

 

Mr Evans sought to act as a class representative for a heterogenous class, comprising both direct customers of the respondent banks and third-party financial institutions said to have been affected by the alleged concerted practices. The proposed class comprised approximately 40,000 members with divergent profiles and claim values, including individuals and corporate entities.

 

As The CAT highlighted  the majority of class members had relatively small individual claims (less than £3,500), while a minority of financial institutions accounted for the majority of the aggregate claim value. The asymmetry between claim value and class composition became central to the opt-in/opt-out analysis.

 

Crucially,  the CAT express  fundamental concerns about the pleaded case on causation,  describing the claims as “so weak that it was liable to be struck out” ([374] CAT Judgment and [5] of UKSC Judgment).  The CAT’s primary concern was not with the existence of infringement (which was established by the Commission decisions), but with the absence of a coherent and properly pleaded causal link between the admitted information exchanges and the ‘market-wide’ losses to the proposed class alleged.

 

 

The UKSC’s decision focused on the proper interpretation and application of Rule 79(3) of the CAT Rules, which require the CAT, when  determining whether collective proceedings should be opt-in or opt-out, to consider in particular:

The CAT had concluded that, in the case of Evans both factors pointed clearly and strongly away from opt-out certification, and the UKSC agreed. In doing so, the UKSC strongly endorsed the CAT’s evaluative discretion and rejected the Court of Appeal’s interventionist approach.

 

The Supreme Court emphasised that appellate courts should be slow to interfere with the CAT’s case-management judgments in this area, absent an error of law.

 

The UKSC accepted that, in practice, the claim was unlikely to proceed on an opt-in basis. However, it held that this fact was not determinative. The Court rejected the proposition that opt-out certification operates as procedural “last-resort”.

 

Mr Evans relied heavily on evidence that attempts to build an opt-in class had failed, largely because potential class members with the largest claims had declined to participate. The UKSC held that the CAT was entitled to regard this as a commercial choice by sophisticated entities, rather than evidence that opt-in proceedings were inherently impracticable.

 

The UKSC accepted that opt-in proceedings would be impracticable for many small claimants, but held that the CAT was entitled to give limited weight to those interests where they represented only a small fraction of the aggregate claim value.

 

From an access to justice perspective, this reasoning is striking. The UKSC was explicit that access to justice is a concept that applies to defendants as well as claimants, observing that the collective proceedings regime was not intended to provide “a stick with which anyone who claims, however implausibly, to have suffered loss can beat infringing undertakings into paying them substantive damages” [141].

 

 

A central feature of the judgment is the UKSC treatment of the “strength of the claim” factor. The UKSC rejected the Court of Appeal’s view that strength is generally neutral, holding instead that it operates on a sliding scale. The weaker the claim, the harder it is to justify conferring the additional leverage inherent in opt‑out proceedings.

 

Importantly, the Court was careful to distinguish this analysis from the strike‑out or summary judgment threshold. A claim may survive strike‑out yet still be sufficiently weak to justify refusal of opt‑out certification.

 

This aspect of the decision is likely to have significant practical consequences. Claimant firms and funders will need to ensure that theories of harm — particularly in market‑wide or umbrella‑effect style cases — are articulated with substantially greater precision at the certification stage.

 

 

The UKSC also firmly rejected the Court of Appeal’s reliance on the Commission’s Sterling Lads decision. The Court held that findings made in a Commission decision addressed to a third party were inadmissible and irrelevant in the absence of issue estoppel.

 

The UKSC criticised this approach as factually inaccurate and procedurally unfair, emphasising that the Commission had identified multiple distinct infringements involving different chatrooms, participants and time periods.

 

This aspect of the judgment sends a clear warning against attempts to bolster weak pleadings by importing factual findings from unrelated regulatory decisions.

 

 

It is often said that bad cases make bad law, and Evans may be seen as an example of a hard case producing a restrictive outcome. The CAT plainly regarded the claim as exceptionally weak on causation grounds, yet was reluctant to strike it out at an early stage in an evolving area of law.  

 

The UKSC’s decision exposes the structural tension within the collective proceedings   regime between facilitating access to justice and preventing disproportionate procedural leverage. Evans is better understood as a reassertion of the CAT’s gatekeeping function at the opt-out stage, rather than a reversal of the low certification threshold established in Merricks.

The clear message for prospective class representatives is not that opt-out claims are disfavoured, but that weakly pleaded claims – particularly those relying on diffuse theories of market-wide harm – will struggle to justify the exceptional procedural advantages of opt-out collective proceedings.

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