The UK’s Competition Appeal Tribunal (“CAT“) has refused to certify the £14 billion consumer class claim brought against Mastercard under the English class action regime introduced in October 2015. This is the second collective action filed under that regime and both have failed at this first hurdle in the procedure. However, this does not necessarily signal that the regime cannot be used for appropriate cases and on behalf of carefully designed classes of claimant.
The CAT ruling has reinforced the view of many observers that the broad class description used in the Interchange Fee collective claim filed against Mastercard went too far in attempting to recover loss. Those pursuing the case sought to represent any individual who had shopped from a UK business that accepted Mastercard between 22 May 1992 and 21 June 2008. Understandably, the CAT found it difficult to accept this as a single cohesive class, noting that:
- Many of the issues required to determine the claim were not common to the class – notably the level of pass-through and level of individual spend.
- An award of aggregate damages could not circumvent this lack of commonality, as the CAT was not persuaded that the claims were suitable for an aggregate award of damages.
- Even if an aggregate award could have resolved this issue, the CAT held that there was “no plausible way of reaching even a very rough-and-ready approximation of the loss suffered by each individual claimant from the aggregate loss“. Thus, there was no workable method of distribution which would have compensated individuals for their loss
The CAT also considered whether it could authorise the class representative. It determined that the funding arrangements in place would have prevented the CAT from doing so had an amendment to that arrangement not been offered during the course of the hearing. This change introduced an obligation on the class representative to pay the funder, subject to recovery from the unclaimed damages pot. This satisfied the CAT that, if it could have certified the claims, it could have authorised the class representative to act.
Defendants may celebrate the restraint shown by the CAT and suggest that this curtails the scope of class actions in the UK. However, testing the new collective action regime with a £14 billion claim on behalf of all UK consumers in relation to a complex competition infringement in the already complex area of interchange fees was always an audacious and high risk move. Claimants likely will take many lessons from the ruling and the next collective claim filed may well be designed with care to address the class and common issues the CAT was challenged with in this case. Whether the CAT’s collective regime can be an effective route for recovery – or is simply deemed redundant in view of the costs and difficulties in satisfying requirements – likely now depends on the emergence of a claim brought on behalf of a defined class and based on a cartel activity with a simpler theory on resulting harm.
