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Mastercard loses appeal to exclude 3 million deceased claimants

In a claim valued at c.£14 billion, Mastercard has lost the latest hearing in the long running consumer action brought by Walter Merricks on behalf of millions of individuals who between 22 May 1992 and 21 June 2008 purchased goods and/or services from businesses selling in the UK that accepted Mastercard cards. In the most recent skirmish in this long running battle, Mastercard sought to exclude c.3 million claimants from the proceedings.

The latest decision related to the relatively narrow but important point of the relevant “domicile date”, which is the date specified by the CAT for determining whether a potential claimant was domiciled in the UK and thus automatically included in the proceedings unless they had opted out. Mr. Merricks claimed it should be 6 September 2016 (the date the proceedings were issued); Mastercard said it should be 18 August 2021 (the date the CPO was granted). Determining the “domicile date” was particularly important in Merricks because on Mastercard’s proposal c. 3 million people who were alive when the proceedings were issued but died before 18 August 2021, would be excluded from the claimant class.

In March 2022, the CAT concluded that the “domicile date” should be the date the proceedings were issued: i.e., the earlier date. Mastercard appealed on the basis that the CAT had failed to act in accordance with the statutory purpose of the domicile date, and thus erred in the exercise of its discretion. The Court of Appeal have now dismissed that appeal.

In reaching its decision, the Court of Appeal emphasised that the overall purpose of the collective proceedings regime is to provide access to justice for individual claimants who would not otherwise be able to obtain legal redress. It was held that the CAT was entitled to approach the determination of the “domicile date” with that overall purpose in mind. The Court recognised in particular that it was only because of the five-year delay between the claim being issued and the making of the CPO that some 3 million people would (if Mastercard were right) have lost their claim. This was through no fault of their own and something the CAT was entitled to have regard to.

Given the increasing costs of litigation, and the relatively low level of damages for individual consumer claims such that they would be uneconomical to bring unless pursued collectively, individuals in consumer claims such as in Merricks would otherwise not have any ability to recover the losses they have suffered. With the impending lengthy recession and cost of living crisis, access to justice is arguably more important than ever, and so the recognition and restatement by the Court of the importance of the collective proceedings regime in providing a route for consumers to obtain legal redress is to be welcomed.

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