Under the Consumer Rights Act 2015 regime (amending the Competition Act 1998), collective proceedings for anti-competitive conduct can be brought on an opt-out basis, which means anyone who falls within the definition of the class is automatically a member unless they explicitly withdraw. However, claims must first be certified by the CAT in the form of a Collective Proceedings Order (CPO).
Ruling in Merricks, Mr Justice Roth and two judges noted ‘the present proceedings are one of the first brought under this statutory regime and, by any measure, amount to a massive claim.
‘The original claim form stated that the class comprised some 46.2 million people, comprising, in effect, everyone who purchased goods or services in the UK when he or she was resident in the UK and over 16 years of age between 1992 and 2008. It should be emphasised that the damages are calculated on all purchases made by members of the class from outlets that accepted Mastercard and are not confined to purchases made using a Mastercard credit or debit card.
‘The aggregate damages were broadly estimated at around £14 billion, including a substantial element of interest given the time since the alleged loss had been suffered.’
The case concerns multi-lateral interchange fees (MIFs) charged for transactions using Mastercard cards, which may have have led to consumers paying higher prices for goods and services.
Boris Bronfentrinker, partner, Quinn Emanuel, representing the applicant, Walter Merricks, said: ‘The tribunal’s judgment marks an important landmark in both the timeline of Mr Merricks’ case, and also in the development of the CPO regime more generally, being the first CPO ever to have been granted.
‘It has been a long and winding journey that started back in 2016. It is very satisfying to know that Mastercard must now defend on the merits a claim of £15bn in the knowledge that it has a binding finding of infringement against it.
‘We now look forward to securing what should be the largest damages award in English history for the class of some 46 million UK consumers and to holding Mastercard to account for its anticompetitive behaviour.’
Merricks, a solicitor and former Chief Ombudsman of the Financial Ombudsman Service, said: ‘The tribunal’s ruling heralds the start of an era of consumer-focused class actions which will help to hold big business to account in areas that really matter, which is an area I have spent much of my working life fighting for and something which I am proud to be a part of.’
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