Court of Appeal overturns CAT's refusal to certify the MasterCard collective action claim

The Court of Appeal has overturned the Competition Appeal Tribunal's (CAT) decision refusing certification in MasterCard's £14 billion collective action claim and remitted the case back to the CAT for a re-hearing: Merricks v MasterCard Inc [2019] EWCA Civ 674.

The action was brought against MasterCard under the "opt-out" regime for competition law cases introduced from October 2015, under which representatives seeking to bring a collective action on behalf of consumers and/or businesses must apply to the CAT for a collective proceedings order certifying the claim before it can proceed. The CAT must consider (among other things) whether the claims raise the "same, similar or related" issues of fact or law and are "suitable" to be brought in collective proceedings, and whether it is "just and reasonable" for the putative representative to act on behalf of the class (including whether the representative can pay the defendant’s costs if ordered to do so).

Here, the CAT refused the application for a collective proceedings order for two principal reasons: the lack of availability of the sort of data that would be necessary for the applicant to prove that any overcharge had been passed on to consumers and the level of this, and the fact that the CAT did not see a plausible way of calculating the loss each individual claimant suffered at the distribution stage. The Court of Appeal disagreed with the CAT's approach in relation to both issues. MasterCard has indicated that it will seek leave to appeal to the Supreme Court.

For more information see our Competition Regulation and Trade e-bulletin on the decision.