Michael O'Higgins FX Class Representative Ltd and another (Respondents) v J.P. Morgan Europe Ltd and others (Appellants)

Case summary

Case ID

UKSC/2023/0172

Parties

Appellant(s)

(1) JPMorgan Chase & Co. (2) JPMorgan Chase Bank, National Association

(3) J.P. Morgan Europe Ltd (4) J.P. Morgan Ltd

Respondent(s)

Michael O'Higgins FX Class Representative Ltd

Phillip Gywn James Evans

Issue

Was the Court of Appeal wrong to overturn the decision of the Competition Appeal Tribunal (the “CAT”) that the collective proceedings should not be brought on an opt-out basis?

Facts

This appeal arises following investigations into foreign exchange (“FX”) spot trading (meaning the purchase or sale of a foreign currency for immediate delivery on a specified date) and findings by the European Commission in two settlement decisions dated 16 May 2019 (the “Settlement Decisions”)of infringements of competition law in relation to this type of trading. The Appellants are all entities forming part of major banking groups (the “Banks”) which participated in FX spot trading during the relevant period. On 16 May 2019, the Commission adopted the Settlement Decisions which found ‘by object’ infringements of competition law, meaning the infringements were by their very nature harmful to the proper functioning of competition. The infringements identified in the Settlement Decisions were an understanding between four or five traders employed by the Banks to exchange certain current or forward-looking commercially sensitive information and to coordinate their trading activity with respect to FX spot trading of certain currencies. The Commission did not make any finding that the conduct in question led to any particular effects on the relevant market. Following the Settlement Decisions, Mr Evans and Mr O’Higgins each brought separate applications to be certified to act collectively for a class of claimants against the Banks. Mr Higgins later discontinued his application, which did not form part of this appeal. Mr Evans asserted that the infringements of competition law in FX spot trading had resulted in persistent, market-wide harm in the form of widened spreads (meaning greater differences between the purchase price and sale price of a unit of currency) by traders within the Banks and other competitor banks. The Tribunal refused to certify either Mr Evans’ claim on an opt-out basis and concluded that he had failed to plead an adequate case on causation. The CAT decided not to strike out the claim but found the weakness of the his claim was a factor pointing strongly against certification on an opt-out basis. Therefore, the CAT stayed the claims and gave Mr Evans a period of time to refile their claims on an opt-in basis. Mr Evans appealed and the Court of Appeal allowed the appeal, finding the CAT had erred in its approach to the opt-in versus opt-out issue. In its reasoning, the Court of Appeal made reference to a separate decision that had been published by the Commission on 5 July 2022. That decision was addressed to a different bank (not party to these proceedings) and found an infringement of competition law in relation to FX spot trading. The Banks now appeal to the Supreme Court.

Date of issue

19 December 2023

Judgment appealed

Linked cases

Judgment details

Judgment date

18 December 2025

Neutral citation

[2025] UKSC 48

Appeal

Justices

Lord Sales

Lord Leggatt

Lord Burrows

Lady Rose

Lord Richards

Hearing dates

Full hearing

Start date

1 April 2025

End date

2 April 2025

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