Author: Leigh Callaway
In July 2017, the Competition Appeal Tribunal (CAT) refused to approve the proposed £14 billion class action claim against MasterCard on behalf of 46.2 million consumers who purchased goods or services from UK businesses which accepted MasterCard between 1992 and 2008. The claim followed on from the EU Commission finding in 2007 that MasterCard’s default interchange fee (the fee charged between banks when processing card payments) was an anti-competitive agreement in breach of article 101 of the Treaty on the Functioning of the European Union, and resulted in higher fees being charged between acquiring banks.
Whereas previous actions had been brought against MasterCard as a result of the Commission’s findings, those claims were brought by various retailers (including Sainsbury’s, Asda and Tesco), rather than end consumers who may have been subject to overcharging. This matter was the first of such claims, and the first to be brought by way of collective action.
The applicant, Walter Merricks, sought the CAT’s approval to act as a class representative on behalf of all individuals who purchased goods or services, from any business selling in the UK that accepted MasterCard cards, between 22 May 1992 and 21 June 2008, provided those individuals had been resident in the UK for at least three months and were aged 16 or over.
The CAT, however, found the claim against MasterCard was not suitable for collective proceedings and refused to allow it to continue. In summary, the basis for the CAT’s decision was twofold: (1) the facts relevant to each consumer’s loss were not sufficiently common for collective proceedings, and (2) there was insufficient data available for the proposed damages methodology. The CAT also held that there was no plausible way the proposed distribution of an aggregate damages award would be proportionate to the loss suffered by each consumer, which would be contrary to the requirement that damages must be compensatory.
The takeaway from the decision is that a party seeking to bring such a collective action before the CAT (and, indeed, before any English court) must ensure that the individual claims which make up the collective action are properly aligned as well as putting before the Tribunal a competent methodology for the assessment and distribution of the damages which flow from the loss.
A copy of the CAT’s decision can be found at: http://www.catribunal.org.uk/237-9391/1266-7-7-16–Walter-Hugh-Merricks-CBE-.html
Leigh Callaway, Senior Associate, Fladgate LLP (firstname.lastname@example.org)
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