Mastercard Milestone Judgment paves the way for competition collective proceedings

 

Mastercard Milestone Judgment paves the way for competition collective proceedings

The Supreme Court has dismissed Mastercard’s appeal against the Court of Appeal’s judgment finding that the Competition Appeal Tribunal (CAT) had erred in refusing an application for a collective proceedings order (CPO) by Mr Walter Merricks (Merricks) in a potential claim for damages.

The Supreme Court held that collective proceedings are a special form of civil procedure. They are designed to provide access to justice where an ordinary individual civil claim would be inadequate.

If quantification issues would not have prevented an individual claim from proceeding to trial, the CAT should not have halted the collective proceedings claim at the certification phase.

The CAT should have asked itself whether the claims were suitable to be brought in collective proceedings as compared to individual proceedings, and suitable for an award of aggregate damages as compared to individual damages.

The CAT was wrong to require Merricks’ proposed method of distributing aggregate damages to take account of the loss suffered by each class member.

The Supreme Court has sent the CPO application back to the CAT and the focus now is on a case which could see damages for some 46 million consumers.   The CAT must now consider whether the claim is more suitable to proceed on a collective basis than individually.  While the case has not yet been given a green light to proceed, the test approved by the Supreme Court represents a lowering of the bar compared to the CAT’s original approach.

This is undeniably a landmark decision. It opens the way to other potential claims that have been in suspense in anticipation of clarification of how claimants should formulate their claims and what supporting evidence is required at the outset.

Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51