The Supreme Court today (December 11) dismissed Mastercard’s efforts to thwart former Financial Ombudsman Walter Merricks’ £ 14 billion lawsuit against him. This is a landmark decision for the future of corporate collective actions in UK courts.
The Supreme Court decision upholds an earlier decision by the appellate court and overturns the original Competition Appeal Tribunal (CAT) judgment that would have hampered class action claims.
The lawsuit brought by Merricks hopes to reclaim funds for anyone over the age of 16 who used Mastercard and whose transaction fees were excessive between 1992 and 2008. The case is the first mass consumer claim brought against the consumer under Parliament’s new collective action regime, Rights Act 2015. Legislation should allow a class that has suffered losses as a result of competition law violations to bring class actions.
The Supreme Court ruled that the CAT’s original ruling “contained errors of law” and “was misdirected in applying the new legislative regime”. Crucially, the Supreme Court found that the CAT never determined that in the trial, Merricks will not be able to have a reasonable chance that the class may have suffered a significant loss.
Commenting on the decision, Boris Bronfentrinker, partner of Quinn Emanuel Urquhart & Sullivan, who represents Merricks, said: “Today the biggest case in British legal history is making history on a very important day for all British consumers. Mastercard and its attorneys have long made dismissive remarks and commented that the case was exaggerated and unsuitable for class action, but the Supreme Court today definitely found the exact opposite. The Supreme Court has recognized the need for mass collective action by consumers. Mastercard has acted in an anti-competitive manner, which the European Court of Justice has definitely established. The Supreme Court has now upheld the Court of Appeal’s ruling that this is an allegation that must have its day in court to determine the full extent of the damage Mastercard has done to UK consumers. ‘
Mark Sansom, joint leader of Freshfields Bruckhaus Deringer’s global antitrust group, stated, “The Supreme Court dismissed the appeal rather than retrying it in these very unusual circumstances. It is important to note, however, that there was a 2: 2 split between the judges on a number of key issues, with two of the judges accepting that the competition’s appellate court was entitled to reject the proposed motion rather than certifying action. The tribunal will now consider the implications at a future hearing. “
In addition to Bronfinker, Merricks is represented by other Quinn Emanuel partners Kate Vernon and Nicola Chesaites, who instruct Paul Harris QC from Monckton Chambers and Marie Demetriou QC and Victoria Wakefield QC from Brick Court.
Meanwhile, Mastercard is represented by Freshfields partners Jonathan Isted, Nicholas Frey and Mark Sansom, who instruct Mark Hoskins QC from Brick Court Chambers, Jon Lawrence and Hugo Leith and Matthew Cook from One Essex Court.
For more background information on this dispute, see the Perfect Storms Cases Of The Year section in our 2020 Disputes Yearbook