Mastercard Incorporated v Merricks

The Supreme Court has today handed down judgment in the competition collective action case brought by Mr Merricks against Mastercard. The case is brought on behalf of 46.2 million consumers, for losses running to several billion pounds. It is the first application for certification under the new collective action regime to have reached the Supreme Court.

The Supreme Court rejected Mastercard’s appeal.  The key elements of the Court’s decision are:

(a)   When the Competition Tribunal decides whether claims are “suitable” to be brought in collective proceedings, what that means is whether they are more suitable to be brought as collective proceedings rather than as individual claims.

(b)  At the certification stage, 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.

(c)   Collective proceedings may result in an award of aggregate damages, reflecting the overall loss to the class, and those damages can then be distributed to the class in a way which does not have to reflect each individual’s actual loss.

Tristan Jones acted for the intervener, Which?.  He has published a blog examining the consequences of the decision, which can be found here.

The full judgment is available here.