CAT rules that claims against MasterCard arising before June 1997 are time-barred

The Competition Appeal Tribunal (CAT) has ruled that Walter Merricks’ collective competition law damages claims against MasterCard are time-barred in respect of any loss suffered before 20 June 1997.

In January 2023, the CAT granted Merricks permission to argue that limitation periods should be postponed under both English and Scots law to allow for the inclusion of claims that had already been time-barred when the Competition Act took effect in 2003.

The CAT rejected the Class Representative's (CR) arguments that the operation of the primary six-year limitation period was suspended pursuant to either section 32(1)(b) or section 32(2) of the Limitation Act m1980. The CAT found no deliberate concealment of relevant facts nor any deliberate breach of duty for the purposes of these provisions. 

The CAT’s findings on the application of the EU principle of effectiveness are instructive.  The CAT ruled that “the EU principle of effectiveness does not impose a hard-edged rule that for such proceedings the limitation period cannot (sic) being to run until the ‘average class member’ can reasonably be expected to discover the relevant facts necessary to bring those proceedings or be aware that they have suffered harm as a result of the alleged infringement” (para 109).

Rather, “[s]ince the class representative is the person bringing the proceedings, we consider that for the purpose of the EU principle of effectiveness, the knowledge requirement should apply to the class representative. We have already observed that, here, the CR was very far from being in the position of the average class member or average consumer: para 61 above. The burden is on the CR to displace the operation of the primary limitation period and we did not hear any evidence as to what the CR knew or could reasonably have discovered” (para 110).

It follows that the CAT will be slow to displace the normal limitation rules by the EU principle of effectiveness.  The relevant knowledge is that of the CR and not the “average class member”. 

 

Case 1266/7/7/16 Walter Hugh Merricks CBE v MasterCard Incorporated and Others

Ruling on relief from sanctions in Rachel Kent collective action

 

The Competition Appeal Tribunal (CAT) has ruled on relief from sanctions in the collective proceedings brought by Dr Rachael Kent (the Class Representative (CR)), under section 47B of the Competition Act 1998.

The proceedings allege that Apple has abused a dominant position, in breach of Article 102 of the TFEU and the Chapter II prohibition of the Competition Act.

The alleged infringements involve requiring iOS App developers to distribute iOS Apps exclusively via the Apple App Store.  It is further alleged that Apple device users are charged excessive and unfair prices represented by a commission charged by Apple on all purchases over Apple payment system.

In August 2023, the CAT ordered that the parties serve signed statements of witnesses of fact by 26 January 2024. The CR sought relief from the sanction set out in CAT Rule 55(2), to submit a witness statement of Christian Owens, dated 13 May 2024.

Although the failure to provide witness statements in accordance with the timetable directed by the CAT is a serious matter, the CAT concluded that the failure in this case was not of material significance and at the lower end of seriousness for the type of breach. It was found that Mr Owens gave evidence on 11 April 2024 in proceedings in an Australian court against Apple entities and the CR only became aware of that evidence shortly thereafter.

Dr Rachael Kent v Apple Inc and Apple Distribution International Ltd [2024] CAT 40, ruling on relief from sanctions

Judgment granting application by Ad Tech to bring collective proceedings against Google for abuse of dominance

 

The Competition Appeal Tribunal (CAT) has given judgment on the application for a collective proceedings order (CPO) brought by Ad Tech Collective Action LLP (the PCR) under section 47B of the Competition Act 1998, against Alphabet Inc, Google LLC, Google Ireland Limited and Google UK Limited.

The action concerns an opt-out claim concerning Google's alleged conduct in relation to sale of digital display advertising.

The application combines two standalone claims originally brought separately by Mr Claudio Pollack and Mr Charles Arthur for damages caused by alleged breaches by Google of Article 102 of the TFEU and the Chapter II prohibition of the Competition Act 1998.

Google argued that the claim form was insufficiently pleaded so as to preclude certification at this stage because the Pro-Sys v Microsoft test was not satisfied.  The CAT rejected those arguments.   

The CAT held that limitation issues should be dealt with as part of the main trial, rather than as questions of strike out. The CAT further held that the points raised by Google as to a potential conflict of interest within the proposed class would be more effectively dealt with during the course of proceedings. The CAT also resisted a claim that the PCR should change the arrangements for its legal representation.

Ad Tech Collective Action LLP v Alphabet Inc and others [2024] CAT 38