The £14bn claim against Mastercard, a collective action on behalf of 46 million consumers, is the first opt-out action to be certified―other cases have been paused pending the Supreme Court’s judgment, including one brought on behalf of millions of train passengers for overpriced tickets. The possibility of opt-out collective actions on behalf of those harmed by anti-competitive conduct was introduced by the Consumer Rights Act 2015.
The case will now return to the Competition Appeal Tribunal, which previously refused to certify the claim.
Anthony Maton, global vice-chair at Hausfeld, which represented Which? in the case, said: ‘This is a revolution in English law.
‘This landmark judgment of the Supreme Court has given the green light for collective actions to be brought on a straightforward and easily understood basis. It paves the way for millions of consumers and thousands of small businesses to be able to bring collective actions against those who have breached competition law―the biggest banks in selling foreign exchange, the train companies in selling fares, the big tech companies who have misused their dominant market position―facilitating access to justice and allowing for the collective exercise of rights which would otherwise go unvindicated.’
Maton explained the ruling sets the standard which future claims will be required to meet for the purposes of certification and clarifies that prospective claimants should not face a ‘mini-trial’ or be expected to provide an overly onerous level of evidence at an early stage.
The case was launched in 2016 by former financial ombudsman Walter Merricks on behalf of Mastercard customers and concerns the European Commission’s finding that the card issuer charged inflated fees on consumer card transactions between 1992 and 2008.
Samantha Silver, partner at Kennedys, said the decision ‘indicates that the tribunal has been too strict in the way they have previously approached these applications.
‘The potential is now here for the floodgates to be opened to further group actions.’
Rocio Concha, Which? director of policy and advocacy, said: ‘This is a hugely important win for consumers.
‘Which? has campaigned long and hard for an effective collective redress scheme and the Supreme Court's ruling will increase access to justice for consumers and set the standard for collective claims of this nature to proceed to trial. From today, the route to collective redress will be fairer, simpler and more attainable, and many cases that are currently on hold will be able to proceed to trial, ensuring victims of anti-competitive behaviour can get the justice they deserve.’
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