Walter Hugh Merricks CBE v Mastercard Incorporated and Others

The class on behalf of which the proceedings are brought comprises all individuals who, between 22 May 1992 and 21 June 2010, when aged 16 and above and resident in the UK, purchased goods and/or services from businesses selling in the UK that accepted Mastercard cards.

Mastercard alleged that insofar as the claims are governed by English law, claims related to infringements occurring before 20 June 1997 are time barred.

Mr Merricks, the Class Representative (“CR”), contended that the operation of the primary six year limitation period was suspended pursuant to s. 32(1)(b) or alternatively s. 32(2) of LA 1980. Alternatively, the CR relied on the EU principle of effectiveness. Aside from the cessation requirement as set out in Case C-267/20 Volvo AB and DAF Trucks NV v RM, EU:C:2022:494, the CR contended that this principle means that no limitation period could begin to run before the class members knew or could reasonably be expected to know (a) the existence of the infringement, (b) the existence of the harm they suffered, (c) the causal link between that harm and the infringement, and (d) the identity of the perpetrators of the infringement.

The Tribunal decided that:

1. there was no deliberate concealment of relevant facts for the purpose of s. 32(1)(b) LA 1980;
   2. there was no deliberate breach of duty for the purpose of s. 32(2) LA; and
   3. the application of the limitation rules under English law is not precluded or modified by the EU principle of effectiveness.

Tim Otty KC acted for Mastercard and led the argument on EU law. He was instructed by Mark Sansom and Ricky Versteeg of Freshfields Bruckhaus Deringer LLP. A copy of the judgment is here.