Further Judgment (CPO Application)

Judgment of the Tribunal on Mr Merricks’ application for a collective proceedings order (“CPO”).

By a judgment given on 21 July 2017, the Tribunal decided that Mr Merricks satisfied the authorisation condition but that the claims did not meet the eligibility condition and therefore dismissed the application for a CPO: [2017] CAT 16. 

The Court of Appeal, in a judgment issued on 16 April 2019, allowed Mr Merricks’ appeal and held that the Tribunal had failed properly to apply the eligibility condition, as well as criticising the approach the Tribunal had taken to the certification hearing: [2019] EWCA Civ 674 (“the CA Judgment”).

On further appeal by the respondents (“Mastercard”), by the Supreme Court Judgment issued on 11 December 2020: [2020] UKSC 51 (“the SC Judgment”), the Supreme Court dismissed the appeal, while rejecting the criticisms made in the CA Judgment of the Tribunal’s approach in the certification hearing.

As regards the eligibility of the claims, in light of the SC Judgment certification was no longer opposed by Mastercard but there were outstanding disputes (a) as to whether Mr Merricks can amend the claim form to extend the class to include persons who died before the claim form was issued (“the deceased persons issue”) and (b) whether these collective proceedings can include a claim for compound interest (“the compound interest issue”).

As regards the deceased persons issue, the original collective proceedings claim form issued by Mr Merricks intended to exclude people who were no longer alive. Mr Merricks therefore sought to amend the claim form to include deceased persons. The Tribunal held (i) a claim by an individual for loss caused by Mastercard’s infringement of competition law will, on their death, vest in their estate; and (ii) a claim for damages could not be brought in the name of a deceased person under s.47B of the Competition Act 1998 ("CA 1998"). The Tribunal therefore refused Mr Merricks’ application to amend the claim form. The Tribunal stated that a claim could be made on behalf of the estates of deceased persons by their personal representatives, but that was not the form of amended class definition sought by Mr Merricks.

Further, the Tribunal held that, even if it were possible to have claims by deceased persons included in collective proceedings, the application to amend was made after the limitation period had expired and an amendment to the class definition to add persons who were deceased before the claim form was issued could not be allowed.

In relation to the compound interest issue, the Tribunal considered that it is not sufficient for a claim to compound interest to show that an individual had borrowing and/or savings.  It is necessary to show, on the balance of probabilities, how they funded the additional expense or what they would have done with the additional money if there had been no overcharge.  The Tribunal concluded that, in the absence of a credible or plausible method of estimating what loss by way of compound interest was suffered on an aggregate basis, this head of claim was not suitable for an aggregate award. Therefore, the claim for loss by way of compound interest could not be fairly resolved in collective proceedings. 

The Tribunal decided that Mr Merricks should be authorised as the class representative under s.47B(8) CA 1998 provided that a suitable undertaking as to liability for costs is given by his litigation funder.