The claim, brought by former financial ombudsman Walter Merricks as the class representative of 46 million consumers, concerns fees charged by Mastercard and is one of the first to be granted ‘opt-out’ status under a collective proceedings order, which means all potential claimants are automatically included unless specifically excluded.
In the latest stage of Merricks, last week, at [2023] CAT 8, the CAT considered costs for a hearing on further amendments to the claimant’s reply to the defendants’ limitation defence including the impact of the 2022 European Court of Justice ruling on limitation in competition cases in Volvo AB v RM (C-267/20).
The CAT found Merricks should have pleaded the matters earlier, but also Mastercard should have made its position clear at or before the September case management conference, preventing the additional hearing and therefore the additional costs arising.
It stated: ‘Had it done so, the intention to amend would have been raised at that time and the tribunal would have been able to manage this aspect of the proceedings appropriately.
‘In particular, this issue would not have been fixed to be heard in January 2023, and the argument about a “late” amendment and disruption to the timetable for issues at the trial would not have arisen.’
In a unanimous ruling, the CAT therefore decided ‘the just order is that each side should bear its own costs of the application for permission to amend, ie the correspondence, written submissions and oral hearing disputing the grant of such permission’.
In the hearing, the CAT accepted Merricks' amendment regarding the Volvo case, and the issue will be considered at a further hearing in April.
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