CAT declines invitation to determine time-bar defences in advance

12/10/22

The CAT (Mr Justice Jacobs) has declined to order that limitation be decided as a preliminary issue in litigation concerning alleged anti-competitive manipulation of the foreign exchange (forex) market.

The Claimants (who are mainly investment funds) have brought two sets of proceedings in England arising out of the conduct at issue. The first claim was brought in 2018 against a number of banks which are addressees of three European Commission Decisions concerning forex manipulation. The second claim was brought in 2020 against a number of further banks which were not fined by the Commission, but which the Claimants allege were involved in the same conduct.

The Defendants in the second claim sought to have the issue of whether the claim against them is time-barred determined on a preliminary basis.

In a judgment issued on 11 October 2022 Jacobs J refused that application. His primary reason for doing so was that there was a substantial overlap between the issues in the two claims and the proposed preliminary issue would make it difficult to case-manage them in tandem, should the preliminary issue not bring an end to the claims pursued in the second case in their entirety. However, Jacobs J would have refused the application in any event, on the basis that the proposed preliminary issue was much longer and more complex than those which had taken place in the recent Granville Technology and Gemalto cases, with the potential for significant delay.