The Competition
Appeal Tribunal (CAT) has given its judgment on the remitted collective
proceedings order (CPO) application by Mr Walter Hugh Merricks CBE (Merricks). This is a milestone judgment certifying the
first collective damages action for breach of competition law under the UK’s
bespoke collective actions regime.
Merricks
sought permission to act as the class representative to bring opt-out
collective proceedings under section 47B of the Competition Act 1998 (Competition
Act). The collective proceedings concern
follow-on actions for damages arising from the European Commission's 2007
decision finding that MasterCard's EEA multilateral interchange fees breached
Article 101(1) TFEU.
The CAT
dismissed Merricks’ application for a CPO in July 2017. The Court of Appeal and
Supreme Court upheld Merricks' appeal.
The Supreme Court remitted the CPO application to the CAT for
reconsideration.
The CAT authorised
Merricks as the class representative under section 47B(8) of the Competition
Act provided that a suitable undertaking as to liability for adverse costs is
given by his litigation funder.
The CAT ruled
that the claim for compound interest could not be fairly resolved in collective
proceedings. It considered that compound
interest would result in a claim for a “gargantuan amount”. The CAT expects a plausible methodology to be
put forward at this stage, “even if it may need refinement later”.
The CAT also
ruled that a claim for damages cannot be brought in the name of a deceased
person under section 47B of the Competition Act. The CAT held that a claim by an individual
for loss caused by Mastercard's infringement of competition law will, on their
death, vest in their estate.
The CAT will
hear further submissions from the parties as to the domicile date and date for
opt-in and opt-out notifications to be set out in the CPO.
Walter
Hugh Merricks CBE v Mastercard Incorporated and others [2021] CAT 28
