Ruling on permission to appeal approval of funding arrangements in collective proceedings against Mastercard and Visa

 

The Competition Appeal Tribunal (CAT) has granted an application by Mastercard and Visa for permission to appeal the CAT's judgment approving the funding arrangements for the applications for collective proceedings orders (CPOs) brought by Commercial and Interregional Card Claims I Limited (CICC I) and Commercial and Interregional Card Claims II Limited (CICC II), under section 47B of the Competition Act 1998.

The proposed class representatives (PCRs) have revised their CPO applications and funding arrangements in light of the Supreme Court's judgment in R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others [2023] UKSC 28 (PACCAR).  Following PACCAR, the funding arrangements for large collective claims have been somewhat uncertain.

On 17 January 2024, the CAT rejected all of Mastercard and Visa’s arguments against the enforceability of the PCRs’ funding arrangements. The judgment emphasised a focus on the substance of funding arrangements as opposed to a blanket assertion of unenforceability regardless of funding arrangements or structure. This approach helps to reinforce the collective actions regime by allowing litigation funding – an essential component – to continue, without which, large claims against competition infringers would be impossible. The CAT accepted that the continuing uncertainty about these issues of funding enforceability arising in this and other cases before the CAT is unlikely to be resolved without determination of the issues by the Court of Appeal.

The CAT granted the applications for permission to appeal stating that it may be of assistance to the Court of Appeal to have a slightly different fact pattern to consider when resolving the points on appeal.

The ruling is timely following the panel discussion I participated in on 28 February 2024 at TL4’s Financial Services conference.

Commercial and Interregional Cards Claims I Limited v Mastercard Inc and others, Commercial and Interregional Cards Claims II Limited v Mastercard Inc and others, Commercial and Interregional Cards Claims I Limited v Visa Inc and Commercial and Interregional Cards Claims II Limited v Visa Inc [2024] CAT 16