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British banks, including Barclays and NatWest, will be at the highest court in the UK today, aiming to overturn a decision in the forex rigging case.
The foreign exchange (FX/forex) market scandal dates back to the early 2010s when it was discovered that banks had colluded for at least a decade to manipulate exchange rates on the forex market for their financial gain.
The City regulator imposed £1.1bn in fines on five banks in 2014, including Citibank, HSBC, JPMorgan, The Royal Bank of Scotland, and UBS.
In Europe, the European Commission found in 2019 that certain entities forming part of the Barclays, Citigroup, JPMorgan, MUFG Bank (formerly Bank of Tokyo-Mitsubishi), RBS/NatWest, and UBS banking groups each participated in FX spot trading cartels.
The cartels concerning spot trading in the G10 currencies, including the British Pound, covered the whole of the European Economic Area and operated between 18 December 2007 and 31 January 2013.
In 2019, a class action was launched by a former senior policy adviser at Which? Phillip Evans, on behalf of law firm Hausfeld.
Hausfeld was co-lead counsel in the US FX class action, which has recovered over $2.3bn in the US.
The claim was filed to the Competition Appeal Tribunal (CAT) in London to seek damages to compensate businesses and individuals who entered into spot transactions and/or outright forward transactions involving G10 currencies with the banks.
The banks include Barclays, Citibank, JPMorgan, MUFG Bank, NatWest, UBS, HSBC and Credit Suisse.
Michael O’Higgins also had another similar case, which has since been formally discontinued in February 2024.
The Evans case has been through several hearings over certification.
In March 2022, the CAT ruled the claims could only be brought on an opt-in basis, meaning claimants have to expressly join the case, adding the claimants failed to plead an adequate case.
However, this decision was overturned by the Court of Appeal in July 2023 after ruling the CAT had erred in its approach to opt-in versus opt-out.
Now, the banks seek to overturn this decision by bringing the case to the Supreme Court.
Over Tuesday and Wednesday, Lord Sales, Lord Rose, Lord Leggatt, Lord Richards, and Lord Burrows will hear arguments addressing two legal issues, including whether the Court of Appeal is wrong in overturning.
If the banks are successful, the Court of Appeal decision will be made redundant, and the claim certification will fail.
