Court of Appeal breathes life into collective proceedings against MasterCard

The Court of Appeal has allowed the appeal of a group of consumers against the Competition Appeal Tribunal’s refusal to certify their collective proceedings against MasterCard which it held was “premature and wrong”. The group is represented by Mr Walter Merricks who had unsuccessfully applied in 2016 to the tribunal for a collective proceedings order.

The Court held that the tribunal had made a mistake by asking for details of data relating to a breach of the competition rules since all that was necessary to certify the action was to decide merely whether or not the claim had a real prospect of success.

The tribunal only had to consider whether the claims might result in an aggregate award of damages and did not need to assess individual loss.

The consumers’ collective claim is based on fees charged between banks for MasterCard transactions, held by the European Commission to be in breach of European competition law.   These fees are likely to have been passed on in the form of increased prices to all consumers purchasing goods or services from merchants participating in the MasterCard scheme.  The collective claim is for an aggregate award of damages for UK persons over 16 who bought goods or services from UK businesses which accepted MasterCard between 1992 and 2008.

This decision by the Court of Appeal clarifies that s47C(2) CA 1998 permits an aggregate award of damages allowed on the basis of a top-down class wide calculation of the level of pass on to consumers. It also clarifies that the Competition Appeal Tribunal Rules 2015 do not require individual distribution of the aggregate award according to loss suffered by each claimant. In any event this was a matter for the trial judge to decide upon making an aggregate award. 

The tribunal had only needed to consider whether or not the claimants’ claim had a real prospect of success but had demanded too much from them by requiring detailed specifications as to what data would be available for each of the relevant retail sectors in respect of the infringement period. In doing so it had effectively conducted a mini-trial.

The tribunal’s refusal had effectively meant no action for infringement would be taken by consumers following the European Commission’s decision that the fees were unlawful.

Lord Justice Patten: “The result of the refusal to grant the CPO in this case is that no follow-on proceedings for infringement based on the EC Decision are likely to be taken by consumers against Mastercard. The likely scale of loss caused to any individual consumer, coupled with the costs of the proceedings, makes litigation by way of individual claims a practical impossibility.”

WALTER HUGH MERRICKS CBE v (1) MASTERCARD INC (2) MASTERCARD INTERNATIONAL INC (3) MASTERCARD EUROPE SPRL (2019)

[2019] EWCA Civ 674

The Court of Appeal has allowed the appeal of a group of consumers against the Competition Appeal Tribunal’s refusal to certify their collective proceedings against MasterCard which it held was “premature and wrong”. The group is represented by Mr Walter Merricks who had unsuccessfully applied in 2016 to the tribunal for a collective proceedings order.

The Court held that the tribunal had made a mistake by asking for details of data relating to a breach of the competition rules since all that was necessary to certify the action was to decide merely whether or not the claim had a real prospect of success.

The tribunal only had to consider whether the claims might result in an aggregate award of damages and did not need to assess individual loss.

The consumers’ collective claim is based on fees charged between banks for MasterCard transactions, held by the European Commission to be in breach of European competition law.   These fees are likely to have been passed on in the form of increased prices to all consumers purchasing goods or services from merchants participating in the MasterCard scheme.  The collective claim is for an aggregate award of damages for UK persons over 16 who bought goods or services from UK businesses which accepted MasterCard between 1992 and 2008.

This decision by the Court of Appeal clarifies that 

s47C(2) CA 1998 permits an aggregate award of damages allowed on the basis of a top-down class wide calculation of the level of pass on to consumers. It also clarifies that the Competition Appeal Tribunal Rules 2015 do not require individual distribution of the aggregate award according to loss suffered by each claimant. In any event this was a matter for the trial judge to decide upon making an aggregate award. 

The tribunal had only needed to consider whether or not the claimants’ claim had a real prospect of success but had demanded too much from them by requiring detailed specifications as to what data would be available for each of the relevant retail sectors in respect of the infringement period. In doing so it had effectively conducted a mini-trial.

The tribunal’s refusal had effectively meant no action for infringement would be taken by consumers following the European Commission’s decision that the fees were unlawful.

Lord Justice Patten: “The result of the refusal to grant the CPO in this case is that no follow-on proceedings for infringement based on the EC Decision are likely to be taken by consumers against Mastercard. The likely scale of loss caused to any individual consumer, coupled with the costs of the proceedings, makes litigation by way of individual claims a practical impossibility.”

WALTER HUGH MERRICKS CBE v (1) MASTERCARD INC (2) MASTERCARD INTERNATIONAL INC (3) MASTERCARD EUROPE SPRL (2019)

[2019] EWCA Civ 674