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