Merricks v Mastercard Incorporated & Anor

Merricks v Mastercard Incorporated & Anor

The CAT erred in law by applying an unduly strict test at the certification stage, requiring excessive evidence of data availability and methodology for aggregate damages, and by insisting on a compensatory method of distribution. The correct approach is that the applicant must show a real prospect of success with a credible methodology, and aggregate damages may be distributed on a non-compensatory basis. The appeal is allowed and the application for certification is remitted to the CAT for re-hearing.

Parties
Appellant: Walter Hugh Merricks CBE; Respondent: Mastercard Incorporated; Respondent: Mastercard International Incorporated; Respondent: Mastercard Europe S. P. R. L
Jurisdiction
England and Wales
Judgment Date
16 April 2019
Procedural Posture
Civil Appeal / Appeal From Refusal of Collective Proceedings Order (cpo) by Competition Appeal Tribunal
Outcome
Appeal allowed
Legal Topics
Collective Proceedings, Aggregate Damages, Certification of Class Actions, Pass on of Overcharges, Distribution of Damages
Competition Law Civil Procedure Collective Proceedings Aggregate Damages Certification of Class Actions Pass on of Overcharges Distribution of Damages

Case Brief

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Parties

Walter Hugh Merricks CBE

Appellant

Mastercard Incorporated

Respondent

Mastercard International Incorporated

Respondent

Mastercard Europe S. P. R. L

Respondent

Procedural Posture

Civil Appeal / Appeal From Refusal of Collective Proceedings Order (cpo) by Competition Appeal Tribunal

Legal Issues

  1. 1 Whether the Competition Appeal Tribunal (CAT) applied the correct legal test in refusing to certify collective proceedings for damages against Mastercard
  2. 2 Whether the CAT erred in its approach to the assessment of evidence and methodology for aggregate damages and pass-on to consumers
  3. 3 Whether the CAT was correct in requiring a compensatory method of distribution for aggregate damages

Ratio Decidendi

The CAT erred in law by applying an unduly strict test at the certification stage, requiring excessive evidence of data availability and methodology for aggregate damages, and by insisting on a compensatory method of distribution. The correct approach is that the applicant must show a real prospect of success with a credible methodology, and aggregate damages may be distributed on a non-compensatory basis. The appeal is allowed and the application for certification is remitted to the CAT for re-hearing.

Court Disposition

Appeal allowed

Orders

  • Order of the CAT refusing certification set aside
  • Application for certification remitted to the CAT for re-hearing