Judgment of the Tribunal in relation to the issue of pass on (namely, the precise method by which the pass-on issue is to be determined by the Tribunal). The Judgment makes no factual findings in relation to pass on. The purpose of the Judgment is to set out how the issue of pass on will be dealt with by the Tribunal in order for the parties to have a clear understanding of what evidence they must adduce in order for this Tribunal to resolve questions of pass on.
For the reasons given in the Judgment, the Tribunal is satisfied that the decision of the Supreme Court in Sainsbury’s Supermarkets Limited v. Mastercard Incorporated & Others [2020] UKSC 24 conclusively sets out the law as to legal and factual causation in the context of pass on. Accordingly, the Tribunal considers that there is no legal issue requiring clarification (despite the Umbrella Interchange Fee Claimants’ suggestion to the contrary), save to the extent that there is a question as to what needs to be pleaded, and by whom.
In relation to the pleading point raised, the Tribunal finds that there is nothing objectionable in the way in which the Umbrella Interchange Fee Defendants (Visa and Mastercard) have pleaded the pass on defence, and that the Umbrella Interchange Fee Claimants’ objections to the pleadings are unfounded in law and wrong.
As to the adducing of further evidence to demonstrate pass on, the Tribunal considers that Visa’s suggestion to use econometric evidence and existing studies of pass on rates to demonstrate pass on is prima facie the correct approach. The Tribunal considers that claimant-specific factual evidence adduced from a sample of many thousand claimants would be disproportionate in light of the Tribunal’s findings as to the nature of pass on. However, the Tribunal indicates that it would be sympathetic to some form of tightly controlled, expert-led disclosure, provided it was focussed, cost-effective and proportionate. This could include survey or questionnaire evidence. Finally, the Tribunal makes clear that the Umbrella Interchange Fee Claimants are not precluded from adducing claimant specific evidence, but the intention to adduce such evidence will be controlled by the Tribunal’s case management powers.
