The UK Supreme Court gave its judgment in Mastercard Incorporated and others (Appellants) v Walter Hugh Merricks CBE (Respondent) [UKSC 2019/0118] on 11 December 2020. It confirmed the decision made by the Court of Appeal that a representative applying for certification of a class must show that they have a method with a realistic prospect of assessing loss across the whole class and that the data required to apply that methodology is likely to be available at trial. This is a relatively low bar to meet. It means that it will be relatively straightforward to pursue class actions litigation in the UK and to secure funding to do so – and that we will not see US-style mini trials poring over evidence at the certification stage. The UK Supreme Court did acknowledge that the Competition Appeal Tribunal has a wide discretion in determining whether to certify and could have dismissed the application on other grounds – nonetheless, it must now reconsider the Merricks application again.
Francesca Richmond is a partner in the Baker McKenzie Dispute Resolution team based in London. Francesca specializes in the litigation and investigation of high value commercial, antitrust and regulatory enforcement matters. She is noted for her expertise in ethics, governance and human rights in addition to litigation of antitrust, consumer and data privacy law.
Frank Kroes is proficient in complex commercial litigation and national and international arbitration. Frank has extensive experience in general commercial litigation, securities litigation, class actions and competition litigation, and litigation before the Supreme Court. He represents clients from a wide variety of industry sectors before the state courts and in national and international arbitration administered by a range of leading arbitration institutes. His work also covers the energy, construction, chemicals, technology and financial sectors, class actions and competition litigation. Frank appears before the courts of all levels, including the Supreme Court and the European Court of Justice.