Court of Appeal judges today unanimously dismissed an appeal against the landmark decision this year to allow about three million now deceased people to continue to be part of a mammoth group action against Mastercard. The ruling concludes a six-year struggle to get the collective proceedings certified in the Competition Appeal Tribunal.  

The claim, over interchange fees that were found to contravene European competition law, was one of the first to be brought under the collective proceedings regime established under the Consumer Rights Act 2015. It was commenced in 2016 and was remitted to the Competition Appeal Tribunal by the Supreme Court in 2020. Earlier this year the tribunal ruled that anyone living in the UK when the claim form was filed should be part of the class. Mastercard appealed, arguing that the 'domicile date' should be in August 2021, when the decision to grant a collective proceedings order was made. 

In Mastercard v Merricks today Sir Julian Flaux, chancellor of the High Court, said the appeal concerned 'a narrow but important point' as to the determination of the domicile date. 

Mastercard

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Sonia Tolaney KC, for Mastercard, argued that the tribunal's purpose for specifying the domicile date had been an ulterior purpose falling outside the statutory purpose. 

Marie Demetriou KC, for claimant Walter Merricks, said that there was nothing in the statute that says that the domicile date has to be the CPO date or that supports the 'narrow purpose' on which Mastercard's appeal was based. 

Agreeing that 'nothing in the statute dictates when the domicile date should be or defines the purpose of the domicile date', Flaux said 'the exercise of discretion by the CAT in the present case was unimpeachable'. Lord Justice Green and Lord Justice Males agreed.

Boris Bronfentrinker, lead partner at Willkie Farr & Gallagher representing Merricks, said the judgment 'finally brings to an end the battle to get the collective proceedings certified, a battle that started over six years ago'.

He added: 'The scope of the class represented by Mr Merricks is now settled. Along the way, Mastercard has brought a number of appeals, all of which have proven to be unsuccessful, and served to only delay these collective proceedings on behalf of UK consumers and unnecessarily run up legal costs. Mr Merricks is pleased with today’s judgment and looks forward to now prevailing on the merits to secure the billions in damages owed by Mastercard to UK consumers.’

 

Sonia Tolaney KC and Matthew Cook KC, instructed by Freshfields Bruckhaus Deringer LLP appeared for Mastercard; Marie Demetriou KC and Anneliese Blackwood, instructed by Wilkie Farr & Gallagher LLP, for Walter Merricks.