Supreme Court ruling in Merricks: some important clarifications but a number of unresolved issues

On 11 December 2020 the Supreme Court handed down a very significant judgment relating to the certification of a £14bn opt-out competition collective action brought by Walter Merricks against Mastercard, in respect of losses alleged to have resulted from the use of anti-competitive multilateral interchange fees: Mastercard Incorporated & Ors v Merricks [2020] UKSC 51.

Although set in a competition context, the decision will be of interest to financial institutions following developments in class actions generally.

The Supreme Court largely confirmed the less restrictive approach to certification set out by the Court of Appeal when it overturned the CAT’s original refusal to grant the Collective Proceedings Order (CPO) sought by Mr. Merricks (see our previous briefing). As a result, the CAT will now need to reconsider Mr. Merricks’ application for certification of the claim against the principles set out by the Supreme Court. Thus, the Supreme Court’s ruling does not amount to any determination of the CPO application nor of the merits of the claim. Instead it provides clear principles against which the CPO application is to be reconsidered by the CAT.

For an explanation on the key takeaways and practical implications of the judgment, see this post on our Competition Notes blog.

Our Competition team will be discussing the implications of the Merricks judgment for the UK competition collective actions regime in a webinar taking place at 12pm tomorrow (16 December). You can register for the webinar here.

Note: In August 2021, the Competition Appeal Tribunal granted the claimant's application for a collective proceedings order. Please see our blog post on the CAT's decision.