By: Tristan Jones (Blackstone Chambers)
The big news from today’s UK Supreme Court collective action decision in Mastercard v Merricks [2020] UKSC 51 is not only that Mr. Merricks won and defeated the appeal, but that the Supreme Court approached the issues in a far more claimant-friendly way than even the Court of Appeal had done.
The headlines are that, when a person applies for a collective proceedings order:
- The statutory question for the Tribunal is not whether the claims are “suitable” to be brought as collective proceedings in some general sense; it is whether they are more suitable to be brought as collective proceedings than as individual claims. This marks a major shift, and it caused the dissenting judges to warn that the new approach will, “very significantly diminish the role and utility of the certification safeguard”.
- The applicant does not need to meet any particular merits or evidential threshold, other than the ordinary tests applicable if the respondent applies for strike out or summary judgment.
- If the applicant is seeking an aggregate award of damages, he/she does not need to show that it will be possible to distribute the damages to class members in a way which reflects or even approximates each individual’s actual loss.
Most readers will know the background. Mr Merricks wants to bring opt-out collective proceedings (i.e. a class action) against MasterCard in respect of the loss allegedly suffered by some 46.2 million UK consumers, which he estimates will come to several billion pounds. The Competition Appeal Tribunal refused to certify the claim. The Court of Appeal held that the CAT had erred in law. For more background see our earlier blogs here and here.
The Supreme Court agreed with the Court of Appeal. It is an unusual – perhaps unique – decision in that two judges (Lord Briggs and Lord Thomas) delivered judgment in favour of Mr Merricks, and two (Lord Sales and Lord Leggatt) delivered a strongly-expressed dissent. The reason why Mr Merricks won is that Lord Kerr was the fifth judge on the panel which heard the appeal, and he had expressed his agreement with Lords Briggs and Thomas before his untimely death on 1 December…
Featured News
Subscribers Defend $4.7 Billion Antitrust Verdict Against NFL in Court Filings
Jul 19, 2024 by
CPI
Von der Leyen Calls for Competition Policy to Boost EU Companies’ Growth
Jul 19, 2024 by
CPI
Vermont AG Sues Pharmacy Benefit Managers Over Drug Prices
Jul 18, 2024 by
CPI
Australians Face Increased Stamp Prices Following ACCC Approval
Jul 18, 2024 by
CPI
Live Nation Seeks Dismissal of DOJ Antitrust Allegations
Jul 18, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Private Equity Roll-Up Schemes
Jun 28, 2024 by
CPI
The FTC’s Focus on Private Equity is Warranted
Jun 28, 2024 by
CPI
Unraveling the Roll-Up: Private Equity’s Misunderstood Investment Strategy
Jun 28, 2024 by
CPI
Antitrust Focus on Private Equity Funds and Serial Acquisitions
Jun 28, 2024 by
CPI
Private Equity Roll-Ups Amidst Heightened Antitrust Enforcement
Jun 28, 2024 by
CPI