Court of Appeal allows appeal in MasterCard collective damages action

Court of Appeal allows appeal in MasterCard collective damages action

The Court of Appeal has allowed an appeal against a Competition Appeal Tribunal (CAT) ruling that refused an application for a collective proceedings order (CPO) to bring opt-out collective proceedings in a damages claim against MasterCard.  The CPO application was remitted to the CAT for re-hearing.

The CAT did not consider that that the claims were eligible for inclusion in collective proceedings as they did not raise common issues relating to the overcharge passed on to individual consumers.

The Court of Appeal ruled that there was no legal requirement to assess an aggregate award through a calculation of individual loss.  The Court stated that pass-on to consumers generally satisfies the test of commonality necessary for certification.

The Court considered that the CAT had imposed too strict a standard at the certification stage and that the proposed class representative should be required to do no more than demonstrate that he has a real prospect of success.

Further, the Court held that there is no requirement for total damages to be distributed according to the compensatory principle as the CAT had required.

Walter Hugh Merricks CBE v MasterCard Incorporated & Ors [2019] EWCA Civ 674