The Supreme Court has handed down a significant judgment for the collective proceedings regime in Evans v Barclays Bank & Ors [2025] UKSC 48. Reinstating the Competition Appeal Tribunal’s (CAT) decision, the Court held that weak claims and the practicability of opt‑in can weigh decisively against opt‑out. The ruling reinforces the CAT’s discretion and limits attempts to use opt‑out certification to secure settlement leverage for marginal claims.
Background
The claim followed the European Commission’s May 2019 settlement decisions concerning FX traders at multiple global banks (including Barclays, Citi, JP Morgan, RBS/NatWest, UBS and MUFG). The proposed class representative, Philip Evans, sought collective proceedings and alleged market‑wide harm affecting both direct and indirect market participants.
In July 2021, the CAT refused opt‑out certification, citing weaknesses in the pleaded case on causation and the practicability of pursuing the claim on an opt‑in basis. The Court of Appeal overturned this, favouring opt-out. However, the Supreme Court unanimously restored the CAT’s original ruling.
The legal framework
Section 47B of the Competition Act 1998, introduced by the Consumer Rights Act 2015, governs the collective proceedings regime in the CAT, including whether they should be certified as opt‑in or opt‑out.
Under CAT Rule 79(3), the Tribunal may consider:
- The merits and strength of the claims (including causation)
- The practicability of opt‑in (including class composition and proportionality)
The Supreme Court held that opt‑out is not the default and reaffirmed the CAT's wide discretion in certification decisions, stating that appellate intervention should be reserved for errors of law or irrationality.
As a reminder, in collective proceedings an opt‑in class requires each claimant to take proactive steps to join the action. In opt‑out proceedings, all UK‑domiciled class members are automatically included unless they actively remove themselves. Opt‑out claims therefore tend to be larger, carry greater litigation exposure for defendants and create stronger settlement pressures, making the certification stage critical.
Supreme Court’s reasoning
The Supreme Court considered the following factors:
Strength of the claim
The CAT was entitled to treat the fundamental causation gap in the alleged “market‑wide harm” as weighing strongly against opt‑out certification, even though the claim survived strike‑out. Weak claims should not benefit from the settlement pressure inherent in opt‑out proceedings.
Practicability of opt-in
Opt‑in may be practicable where a class consists largely of sophisticated commercial entities with substantial individual claims. The CAT may consider sub‑classes but must ultimately reach an overall evaluative judgment. Opt‑out is not justified merely because a smaller subset of low‑value claimants is unlikely to opt in.
No policy presumption for opt-out
While access to justice and deterrence are important policy goals, they do not inherently favour opt‑out proceedings. As the Court noted “opt‑out collective proceedings are an especially powerful vehicle … but they also carry the risk that defendants may be driven to settle unmeritorious claims”.
Impact: Rebalancing the regime after Merricks
The judgment represents the most significant recalibration of the collective proceedings regime since Merricks v Mastercard [2020] UKSC 51. It shifts the balance back towards a more structured and evidence‑based certification stage, particularly for business‑to‑business claims.
Shift away from Merricks’ generous threshold
Merricks was widely seen as lowering the bar for certification, emphasising flexibility and permitting large‑scale consumer claims with unresolved causation and quantification issues to proceed. Evans corrects this by:
- Reaffirming that the strength of the claim is a substantive factor at certification
- Reasserting the CAT’s gatekeeper role, shielding its evaluative decisions from appellate intervention
This recalibration tempers any post‑Merricks assumption that opt‑out certification is available wherever common issues exist.
A new emphasis on class composition
Evans clarifies that the nature of the proposed class matters. Consumer‑focused mass claims (as in Merricks) raise different considerations from claims brought by large, sophisticated financial institutions with significant, individually viable claims.
The Court emphasised that opt‑out is typically ill‑suited where major commercial actors can readily litigate individually or opt-in. Prior to Evans, claimant representatives and funders increasingly sought opt‑out certification for business‑to‑business claims by arguing that coordination made opt‑in “impracticable”. That assumption no longer stands.
Strengthening defendants’ position against “leverage claims”
Many defendants argued that expansive opt‑out claims generated undue settlement pressure, even where the merits were weak, because of the scale, costs and disclosure burden. The Supreme Court recognised this “oppressive leverage effect”, and that defendants should equally be protected from speculative or weak collective litigation.
Practical implications for future cases
The judgment signals several trends:
- Fewer opt‑out certifications in business‑to‑business cases, with opt‑in becoming the natural route for sophisticated claimant groups
- Greater emphasis on precise pleadings and robust economic evidence on causation
- A widening divergence between consumer claims (governed largely by Merricks) and commercial claims (now shaped by Evans)
- More contested certification hearings, with defendants now armed with a strong precedent to challenge weak merits and insist on opt‑in
Overall, Merricks broadened the gateway; Evans reinstates and reinforces meaningful filters.
Key take aways
Evans does not eliminate opt-out proceedings; it rebalances them.
Key take aways:
- The merits of the claim are important at the certification stage
- Opt-in practicability, especially for sophisticated high-value claimants, can be decisive
- The CAT’s gatekeeper role has been re-affirmed
For claimants and class representatives, the route to certification now demands tighter pleadings, sharper causation analysis and more carefully defined class composition. Emphasis on merits and opt‑in practicability will influence the commercial viability of business‑to‑business collective actions, with opt‑in models likely to play a more prominent role. This can only be a good thing for defendants and their liability insurers.
