Merricks was successful on arguments on the domicile date and an amendment application last week in the Competition Appeal Tribunal (CAT), in Merricks v Mastercard [2022] CAT 13.
According to Merricks’ lawyers Willkie Farr & Gallagher, this means more than three million class members who were alive on 6 September 2016 but have since died will be succeeded as a ‘represented person’ by the personal or authorised representative of their estate in the litigation.
Giving the judgment, the CAT said the domicile date should be specified as the claim form date. Otherwise, more than three million people would be excluded, leading to ‘a windfall for Mastercard… And it would result from the original, erroneous decision of this tribunal to refuse a CPO and then the prolonged process of appeals, neither of which is the fault of those who will thereby be excluded from the class’.
However, it added it reached this decision on the circumstances of the case. ‘For CPO applications in the future, it is undesirable for the class definition to depend on the domicile date,’ it said.
‘The two concepts should be kept separate, and the domicile date limited to its particular statutory purpose.’
The CAT also agreed to the use of a higher interest rate of 5% above the Bank of England rate, which Willkie Farr estimate could add up to £2.7bn to the £14bn claim.
Willkie Farr & Gallagher partner Boris Bronfentrinker said: ‘This brings to a conclusion the one final outstanding issue that needed to be resolved, and we now expect the Collective Proceedings Order (CPO) to be made in the course of next week.’
The next hearing is expected to be in the CAT at the end of July.
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