Lawyers pursuing a landmark £10bn class action against Mastercard today dismissed a statement from the credit card’s firm’s own representatives that a judgment handed down yesterday is fatal to 90% of the claim.

The full £10bn remains ‘in play’, Boris Bronfentrinker, a litigation partner at international firm Willkie Farr & Gallagher, told the Gazette.

Willkie is acting for Walter Merricks CBE, a former financial ombudsman, who is class representative in the UK’s first mass consumer claim of its kind. It is alleged that shoppers paid too much for goods as a result of inflated interchange fees imposed by Mastercard on businesses that accepted its debit and credit cards between 1992 and 2008.

In 2014 the European Court of Justice found that the credit card firm’s fees for cross-border transactions were too high. The claimants allege that these so-called EEA multilateral interchange fees (EEA MIF) inflated UK fees because they were used as a benchmark.

Walter-Merricks

Walter Merricks: class representative

Last July, the Competition Appeal Tribunal directed a trial of whether a relevant causal link existed between the cross-border fees and UK interchange fees in the ‘factual world’. The tribunal, led by the Hon Mr Justice Roth, yesterday ruled unanimously that there was no such link.

In a statement, a spokesperson for Freshfields said: ‘This is a very significant judgment. It finds that over 90% of Mr Merricks’ case fails factually.’

Willkie’s Bronfentrinker, however, dismissed Freshfields’ claim, accusing the magic circle firm of being ‘coy’ in its wording. He stressed that the tribunal did not make any findings as to what the position would have been in the ‘counterfactual’ world – that is, a world in which the EEA MIF was zero or lower than it actually was. That will require a separate trial, Bronfentrinker added, meaning the full £10bn action remains live.

The CAT’s ruling states: 'We note that in his written opening, the [class representative Merricks] suggested that in [the] counterfactual world the structure whereby UK multilateral exchange fees were set could have been different and Mastercard might not have removed [MasterCard/Europay UK Ltd’s] authority to set UK MIFs in November 2004. We note also that Mr Sideris [who held various roles at Mastercard Europe between 2002 and 2011] suggested in his evidence that if issuing banks lacked the income from interchange fees in respect of consumer cards, they might have imposed fees on cardholders.

’The extent to which such allegations are open to the parties, and what their implications might be, are not matters for this trial.’