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Court of Appeal overturns CAT judgment in Merricks v Mastercard collective proceedings

16/04/19

The Court of Appeal (Patten, Hamblen and Coulson LJJ) has allowed Walter Merricks’ appeal against the Competition Appeal Tribunal’s judgment refusing to grant a Collective Proceedings Order (‘CPO’).  Mr Merricks seeks to represent a class of some 46 million people, in a claim worth some £14 billion.

The judgment addresses the legal test for an application for a CPO under the new regime for collective actions in competition cases. The Court of Appeal held:

  • that Canadian case-law provides guidance on the proper approach to claims for aggregate damages.
  • that the CAT demanded too much of the proposed class representative at the CPO stage, in particular in respect of the availability of data.  It should only have asked whether the proceedings had a real prospect of success. Instead, it had wrongly conducted a mini-trial.
  • that the CAT had wrongly directed itself that an aggregate damages award had to be distributed on a compensatory basis, i.e. in a way which would bear some relation to the actual loss of individual class members. The vindication of the rights of individual claimants is achieved by the aggregate award itself.
  • that the CAT was premature to consider distribution at the certification stage, as it is a matter for determination following trial.

Subject to Mastercard’s application for permission to appeal to the Supreme Court, Mr Merricks’ application for a CPO has been remitted to the CAT.

The judgment is here.

Marie Demetriou QC and Victoria Wakefield QC (instructed by Quinn Emanuel Urquhart & Sullivan LLP) appeared for Walter Merricks.

Mark Hoskins QC, Hugo Leith and Jon Lawrence (instructed by Freshfields Bruckhaus Deringer LLP) appeared for Mastercard.