Supreme Court reshapes UK competition class actions landscape

The Supreme Court has restored the Competition Appeal Tribunal's (CAT's) decision refusing to certify the FX class action on an opt-out basis: Michael O'Higgins FX Class Representative Ltd v Barclays Bank Plc [2025] UKSC 48. 

The decision marks a pivotal moment for the competition collective actions regime. Some key takeaways are below:

• Access to justice and vindication of rights not absolute considerations: These factors must be balanced against the need to protect defendants from the burden, and settlement pressure, of unmeritorious opt-out claims. 
• Gatekeeper role of the CAT reaffirmed: The Supreme Court emphasised the CAT’s broad discretion and its crucial gatekeeper function in certification decisions. We therefore see this as a "reset" of the certification stage of collective proceedings with the role of the Court of Appeal more limited. 
• Strength of claim matters: The strength of the claim is an important factor in determining whether proceedings should be brought out on an opt-in or opt-out basis. It is not an answer that something may turn up in disclosure; the strength must be apparent on the face of the claim before embarking on an expensive and burdensome disclosure exercise can be justified. 
• Objective assessment of practicability: The CAT was entitled to assess whether opt-in proceedings were practicable for the class as a whole and opt-out proceedings may be harder to certify for claims brought by large, sophisticated entities. 
• No presumption in favour of opt-out: The CAT must strike a balance between facilitating access to justice (and deterring breaches of competition law) and protecting defendants from oppressive litigation. The CAT has to consider the competing interests of both parties). 

For more information see this post on our Competition Notes blog.