On 13 November 2018, the Court of Appeal (Patten, Hamblen and Coulson LLJ) handed down an important judgment in Walter Hugh Merricks CBE v MasterCard Incorporated & Ors  EWCA Civ 2527 concerning the extent to which there is a right of appeal from decisions of the Competition Appeal Tribunal (the “CAT”) refusing an application for a collective proceedings order (a “CPO”). This is the first time the point has been considered since the introduction of the collective proceedings regime.
The background to the judgment is as follows:
In its 13 November 2018 judgment, the Court of Appeal held that the question of whether there is a right of appeal from a decision of the CAT in respect of a CPO application turns on the meaning of the words “as to the award of damages” in s.49(1A)(a) of the Competition Act 1998 (as amended by the Consumer Rights Act 2015).
The Court’s conclusion was that the CAT’s refusal of Mr Merricks’ application for a CPO did constitute a decision “as to the award of damages” within the meaning of s.49(1A)(a) because it was a “determination by the Tribunal that the eligibility criteria” for certification of the collective proceedings have not been met. The consequence of such a decision is that the proposed class representative is “not entitled to seek an aggregate award of damages under s.47C(2) which is a remedy unique to collective proceedings” (at §27). Since such a decision “is likely to prevent individual members of the represented class who have suffered loss from obtaining any compensation” it constitutes a decision as to the award of aggregate damages and a right of appeal lies to the Court of Appeal (also at §27). The CAT’s Guide to Proceedings 2015 is therefore wrong in this respect.
A further rolled up hearing will now be listed to consider the substantive appeal.
The Court of Appeal’s judgment is available here.
Marie Demetriou QC, Victoria Wakefield and Emma Mockford appeared for the proposed class representative and appellant, Mr Merricks (instructed by Quinn Emanuel Urquhart & Sullivan LLP).
Mark Hoskins QC, Hugo Leith and Jon Lawrence appeared for the proposed defendants and respondents, Mastercard Inc, Mastercard International Inc and Mastercard Europe S.P.R.L (instructed by Freshfields Bruckhaus Deringer LLP).