High Court rules on liability in damages actions by retailers against MasterCard

The High Court of England and Wales has ruled that the major part of MasterCard’s English and Irish multi-lateral interchange fees (MIFs) were lawful, thwarting competition damages claims by ten retailers.

The claimants alleged that MasterCard’s EEA, UK and Irish MIFs infringed Article 101(1) TFEU and the equivalent national law provisions.

The judgment follows an initial trial to determine a number of preliminary issues of liability and quantum.

The High Court adopted a different approach to that of the Competition Appeal Tribunal (CAT) in its judgment on a recent damages action brought by Sainsbury’s against MasterCard.  It found that against a counterfactual where MasterCard’s interchange fees would have been set at zero, the MasterCard scheme would not have survived in the UK or Ireland in a materially and recognisably similar form. 

While the High Court said that it accorded the CAT judgment “considerable respect” this was not binding.  In particular, the Court ruled that the evidence before it was “rather different” from the “conflicting and anecdotal evidence” seen by the CAT.

It should be noted that arguments based on the potential demise of MasterCard were not raised in relation to the EEA MIFs and the High Court said that these constitute a restriction of competition, albeit the EEA credit card MIFs were at exemptible levels.

Asda Stores Limited and Others v MasterCard Inc and Others, judgment of 30 January 2017, [2017] EWHC 93 (Comm)