“certain current or forward-looking commercially sensitive information about their trading of either immediate commercial value, or of commercial value lasting for a period of minutes or at most hours after it had been shared, depending on the type of information or until it had been superseded by new updated information that overrode it …”
“(a) whether collective proceedings are an appropriate means for the fair and efficient resolution of the common issues; (b) the costs and the benefits of continuing the collective proceedings; (c) whether any separate proceedings making claims of the same or a similar nature have already been commenced by members of the class; (d) the size and the nature of the class; (e) whether it is possible to determine in respect of any person whether that person is or is not a member of the class; (f) whether the claims are suitable for an aggregate award of damages; and (g) the availability of alternative dispute resolution and any other means of resolving the dispute, including the availability of redress through voluntary schemes whether approved by the CMA under section 49C of the 1998 Act or otherwise.”
“In determining whether collective proceedings should be opt-in or opt-out proceedings, the Tribunal may take into account all matters it thinks fit, including the following matters additional to those set out in paragraph (2)— (a) the strength of the claims; and (b) whether it is practicable for the proceedings to be brought as opt-in collective proceedings, having regard to all the circumstances, including the estimated amount of damages that individual class members may recover.”
“The Tribunal will consider all matters it thinks fit in determining whether proceedings should be opt-in or opt-out. Rule 79(3) lists two specific factors the Tribunal will consider: - Strength of the claims (Rule 79(3)(a)) Given the greater complexity, cost and risks of opt-out proceedings, the Tribunal will usually expect the strength of the claims to be more immediately perceptible in an opt-out than an opt-in case, since in the latter case, the class members have chosen to be part of the proceedings and may be presumed to have conducted their own assessment of the strength of their claim. However, the reference to the ‘strength of the claims’ does not require the Tribunal to conduct a full merits assessment, and the Tribunal does not expect the parties to make detailed submissions as if that were the case. Rather, the Tribunal will form a high level view of the strength of the claims based on the collective proceedings claim form. For example, where the claims seek damages for the consequence of an infringement which is covered by a decision of a competition authority (follow-on claims), they will generally be of sufficient strength for the purpose of this criterion. - Whether it is practicable for the proceedings to be brought as opt-in proceedings (Rule 79(3)(b)) The Tribunal will consider all the circumstances, including the estimated amount of damages that individual class members may recover in determining whether it is practicable for the proceedings to be certified as opt-in. There is a general preference for proceedings to be opt-in where practicable. Indicators that an opt-in approach could be both workable and in the interests of justice might include the fact that the class is small but the loss suffered by each class member is high, or the fact that it is straightforward to identify and contact the class members.”
“It is right that the strike-out jurisdiction not be exercised in an area of law that is subject to some uncertainty and is in a state of on-going development and not without the Applicants having the opportunity to address the concerns we have articulated much more clearly in this Judgment than we did during the hearing.”
“First, in relation to “strength”, having concluded that it would form no final view on the merits pending the submission of reformulated cases by the applicants, it was wrong to treat that necessarily provisional view as definitive and accord it more or less decisive weight in the scales against opt-out, knowing and intending that this would bring the claim to an end. Further, it was necessary, in any event, to link any conclusion the CAT did have on strength to the choice it had to make. … it is wrong to treat strength as a sliding scale with a weaker case going to opt-in and a stronger case to opt-out. Secondly, in relation to practicability, the statistical evidence, which in broad sweep is unchallenged, explains why opt-in is impracticable. I respectfully disagree with the inferences drawn from this data and from the evidence by the [Tribunal] majority. That being so there was no reason why the proceedings should not proceed upon an opt-out basis.”
“The claims as they have been articulated before us are founded on economic theory. That theory is not articulated in the pleadings, but can be derived from a careful consideration of the expert reports referenced in those pleadings (which we have listed and described in Annex 2 hereto) by a person well-versed in the relevant economics. The Tribunal is fortunate that it has the expertise to consider the implications of the Annex 2 materials.”
“The mere fact that a person A trades with a counterparty who – in other, unrelated trades, has behaved unlawfully – is of itself no basis for impugning A’s trades with that counterparty. The causal route by which A is harmed is unclear and not clearly stated in the Evans claim form.”
“we are satisfied that the facts and matters necessary to support a proper pleading have not been articulated in the pleadings as they stand …. We are satisfied that this is not because of a failure to translate specific details that are contained in the expert reports into a legally framed document. Although the expert reports are detailed, these details amount to no more than a detailed expansion of a theoretical position. Our conclusion is that they do not contain material sufficient to support a proper plea of causation, loss and damage.”
“A class action procedure which has these features [the potential to opt out and to recover aggregate damages] provides a potent means of achieving access to justice for consumers. But it is also capable of being misused. The ability to bring proceedings on behalf of what may be a very large class of persons without obtaining their active consent and to recover damages without the need to show individual loss presents risks of the kind already mentioned, as well as giving rise to substantial administrative burdens and litigation costs. The risk that the enormous leveraging effect which such a class action device creates may be used oppressively or unfairly is exacerbated by the opportunities that it provides for profit.”
“But that could only assist BT here, in our view, if it could persuade us that this is a very weak claim even if it could surmount the summary judgment/strike-out threshold. For all the reasons given, however, we are not so persuaded.”
“in many cases the [Tribunal] might be hard pressed at the certification stage to form a sufficiently clear view of the merits to enable it, with confidence, then to take merits any further in the overall balancing exercise. This might be because of the complexity of the legal and economic issues arising and the absence at the certification stage of expert evidence and disclosure.”
“when it comes to the weighing up of the various factors relevant to the choice of opt-out or opt-in this is essentially an exercise of judgment over facts and evidence by an expert, specialist, body, that will over time accrue an increasing well of experience in how to handle these complex cases. The appellate courts recognise that the case management decisions of the [Tribunal] are exercises in pragmatism and that undue formalism and precision are not required … These considerations broaden the Tribunal’s margin of discretion or judgment. This Court should not interfere simply because it might, for the sake of argument, have drawn a different conclusion from the weighing exercise. We would expect that most opt-out/opt-in decisions will involve a weighing exercise of this nature.”
“The [Tribunal] came to specialist conclusions which lay squarely within its broad margin of judgement. There is in our judgment no basis in law upon which this court can properly interfere.”
“It might be that the total claim, as estimated, is between£2.1bn and£2.7bn ; but it is the claim of the individual that determines whether that individual is willing to become embroiled in litigation. I would respectfully disagree with the inferences the [Tribunal] has drawn from the Table.”
“With respect to the [Tribunal], it is now clear from case law that where there would be no proceedings save on opt-out terms, that is a powerful factor in favour of a claim being certified as opt-out.”
“Access to justice does not, in our judgment, mean that every case that can only be brought on an opt-out basis must be permitted to proceed on that basis. Opt-out certification is not a certification basis of last resort, in the sense that if opt-in proceedings do not work, there is effectively an entitlement to certification on an opt-out basis. Rather, ‘access to justice’ means considering – taking all of the material into account – whether certifying on an opt-out basis is appropriate.”
“the essential reasoning is compelling: unless the second court goes into the facts for itself, it cannot actually tell what weight it should properly attach to the previous decision. Which means that the previous decision itself cannot be relied upon.”
“it is for this Tribunal to assess the evidence and make primary findings of fact. Relying upon the evaluative judgments of other decision-makers necessarily circumvents that role.”
“How would this Tribunal, at trial, go about assessing how much weight should be given to a particular decision of another court or regulator? That would almost inevitably involve a detailed consideration of the evidence that was before the other decision-maker and the nature of the decision-making process. It might also require an assessment of the way in which the arguments were put to that decision-making body, on both sides. There would in consequence be what HHJ Paul Matthews (sitting as a judge of the High Court) described at [51] of Crypto Open Patent Alliance v Wright[2021] EWHC 3440 (Ch) as ‘satellite litigation about the circumstances in which the earlier decision was come to, and how far it could properly be helpful in the later proceedings’.”
“The correct position is that, when there is no question of a conflict of decisions in the sense which I have discussed, the decision of the Commission is simply evidence properly admissible before the English court which, given the expertise of the Commission, may well be regarded by that court as highly persuasive. As a matter of law, however, it is only part of the evidence which the court will take into account. If, upon an assessment of all the evidence, the judge comes to the conclusion that the view of the Commission was wrong, I do not see how, consistently with his judicial oath, he can say that as a matter of deference he proposes nevertheless to follow the Commission. Only a rule of law, in the nature of an issue estoppel which obliges him to do so, could produce such a result and the Court of Appeal accepted that there was no such rule.”
“there is a limited exception to the rule in Hollington v Hewthorn which is applicable in situations where the case is at a preparatory stage yet the court has to consider what evidence at trial there might be. … [M]aterial (inadmissible at trial) can assist in identifying the evidence which can reasonably be expected to be available at trial, to which a court is entitled to have regard at the interlocutory stage.”
“The exchanges of information on bid-ask spreads in the chatroom increased transparency and reduced market uncertainties for the participating traders regarding prices. These exchanges enabled the participating traders to obtain greater certainty on the spreads they were quoting and might have informed their subsequent trading behaviour concerning spreads. The information exchanges may also have allowed them to align their spreads for particular transactions and thereby their all-in price offered to a specific client for a particular transaction. A customer who is not aware of such exchanges of non-publicly available information on spreads may have contacted more than one of the parties’ sales desks to get a price on a specific trade and may have received less competitive prices from them due to the exchanges of information on bid-ask spreads between the participating traders …”