The Supreme Court’s ruling in Evans v Barclays Bank Plc & Ors [2025] UKSC 48 represents a major development for collective redress in the UK. Although the case originated from FX cartel litigation, the Court’s judgment has implications far beyond competition law. It offers broader guidance on the organisation, certification, and management of collective actions. This decision arrives at a crucial point for Scotland, as the Scottish Civil Justice Council considers implementing an opt‑out system.
As a reminder, this case involved a follow-on claim from European Commission infringement decisions under competition law, where the Competition Appeal Tribunal (CAT) had to decide at the certification stage whether to allow the case to proceed on an opt-in or opt-out basis. There were two classes of claimants: directly affected financial institutions with larger claims, and a much larger group with small claims, allegedly harmed by the overall market effect of the conduct. The UK Supreme Court (UKSC), upholding the CAT and overturning the Court of Appeal (CA), held that the merits of the claim (specifically, here, the case on causation) can be considered during this process, and the fact that a claim might survive a strike-out application does not preclude further examination. In addition, the UKSC held that if the claim was unlikely to proceed on an opt-in basis, that was a relevant factor, but it did not automatically render opt-in impracticable (practicability being part of the test). Although opt-out was more appealing to the large institutional defendants and offered easier funding, they could have pursued an opt-in approach. Importantly, the court clarified there is no presumption in favour of opt-out; considerations of access to justice apply equally to claimants and defendants.
Opt‑out is not the presumed model
A central message from the judgment is that opt‑out proceedings are not the default simply because they might facilitate the vindication of rights or deter future wrongdoers. The Court emphasised that the statutory framework requires a careful, case‑specific assessment of whether opt‑in or opt‑out is the more appropriate mechanism. This is a notable shift in tone. In recent years, opt‑out claims have gained momentum, and some had interpreted earlier case law as signalling a general preference for them. The Supreme Court has now made clear that opt‑out must be justified, not assumed. As the Court observed, access to justice cuts both ways and defendants are equally entitled to be protected from the excessive costs and settlement pressure of unmeritorious opt-out litigation.
Proportionality and suitability are the anchors
The Court placed strong emphasis on proportionality and suitability when deciding whether to allow proceedings on an opt-out basis. These are not abstract concepts - they require a grounded assessment of:
- the nature of the market or conduct at issue;
- the characteristics of the claimant class;
- the feasibility of identifying and engaging affected individuals;
- the risk of sweeping in unmeritorious claims; and
- the overall fairness of the proposed mechanism.
This holistic approach signals that collective actions must be designed to deliver justice efficiently, not simply to maximise class size.
Practical realities can justify opt‑in
One of the most important aspects of the judgment is its recognition that opt‑in can be entirely appropriate, even in claims where there is a large‑scale group of small consumer claims. Where claimants with the largest claims are identifiable, engaged, or capable of participating directly, an opt‑in model may be more proportionate. The fact that those large claimants may prefer an opt-out model does not entitle them to its advantages and does not make opt-in impracticable.
This is a reminder that collective redress is not a one‑size‑fits‑all solution. The mechanism must reflect the realities of the claim, not just the theoretical benefits of aggregation.
Availability of funding is not decisive
The Court acknowledged the importance of litigation funding, but it made clear that it does not dictate the choice between opt‑in and opt‑out. If funding is only available for an opt-out claim but not an opt-in claim, that is a factor to consider but it is not decisive. The collective actions regime is not intended to immunise claimants from the usual commercial considerations which determine whether a claim is viable.
This is particularly relevant in a landscape where third‑party funding plays an increasingly prominent role.
Why this matters for Scotland’s opt‑out proposals
The timing of the judgment is striking. Scotland is actively considering whether to introduce an opt‑out collective proceedings regime, expanding beyond its current opt‑in model. The Supreme Court’s reasoning provides several important guideposts for policymakers and practitioners north of the border.
Opt-out should be reserved for special cases: The Court's assertion that opt-out is not the standard encourages Scotland to approach it with caution. If opt-out is introduced, this judgment outlines a solid method for review at certification stage about whether a particular claim should proceed as an opt-out. The court must not allow opt-out, with its substantially higher damages and higher costs, to be used to leverage settlements for weak claims.
Judicial discretion needs to be expansive and allow consideration of merits: The Supreme Court highlights the importance of judges making careful, evaluative decisions, indicating Scottish courts should have substantial freedom when determining suitability. Implementing an inflexible test would contradict the principles set out by the judgment. In the current opt-in group proceedings regime, the Scottish courts have steered away from considering the merits of claims at permission stage. That approach is unlikely to be appropriate if, in the future, they must decide whether an opt-out claim can proceed.
Decisions should prioritise practicality and fairness: With its emphasis on practical factors - such as identifying class members, fostering participation, and proportionality - the Court reflects concerns for consideration by the Scottish Civil Justice Council when framing a test for opt-out. These aspects are likely to be key in certification decisions going forward.
Funding should not dominate the decision: The judgment advocates for a measured perspective on third-party funding. The Scottish Civil Justice Council’s ‘call for evidence’ seeks to be addressed on important issues like funder involvement, costs, and monitoring, and the Supreme Court's conclusions offer a check on claims that funding ought to define procedural arrangements.
Evans is not a retreat from collective actions. Instead, it is a rebalancing - a reminder that collective redress must be principled, proportionate, and grounded in the realities of the claim. For Scotland, the judgment offers a timely reminder that, if an opt‑out regime is introduced, it must enhance access to justice without sacrificing fairness or proportionality.
If you would like to discuss any of the matters mentioned in this post, please contact our class actions lawyers, or your usual Brodies contact.
