Sainsbury's Supermarkets Ltd v Mastercard Incorporated & Ors

The High Court may transfer to the Competition Appeal Tribunal proceedings, or parts of proceedings, concerning an infringement issue or a claim within section 47A of the Competition Act 1998. The court must consider all the circumstances, including the parties’ wishes, the specialist nature of the CAT, the complexity of the evidence, the procedural stage reached and the effect on the existing timetable. A transfer of proceedings begun in the High Court does not engage transitional limitation rules governing claims originating in the CAT. The transfer should preserve the claim as constituted before transfer and should not alter, limit or exclude any element of it.

The claimant brought a substantial standalone competition damages claim in the High Court against Mastercard. Following the commencement of the Consumer Rights Act 2015, the CAT acquired jurisdiction over standalone claims and new transfer mechanisms became available under section 16 of the Enterprise Act 2002. The court considered whether the proceedings should be transferred to the CAT, having regard to their complexity, extensive expert economic evidence, advanced procedural stage, available trial judge, the parties’ views, limitation concerns and additional bundle costs.

1. The proceedings were transferred to the CAT under section 16(4) of the Enterprise Act 2002 and/or section 16(1) together with the Section 16 Enterprise Act 2002 Regulations 2015. The transfer covered the parts relating to a claim to which section 47A of the Competition Act 1998 applied and the parts relating to an infringement issue.

2. The court held that the legislative reforms effective from 1 October 2015 had materially expanded the CAT’s jurisdiction to include standalone damages claims. The transfer provisions were intended to facilitate the use of the CAT’s specialist and multidisciplinary expertise in complex competition litigation, particularly where expert economic evidence and industry evidence were extensive.

3. In deciding whether to transfer, the court was required to consider all the circumstances, including the wishes of the parties. Relevant considerations included the length and complexity of the case, the volume and nature of expert evidence, the CAT’s specialist resources, the stage reached in the proceedings, the availability of the assigned judge to sit as CAT Chairman, and whether the transfer would imperil the existing trial timetable.

4. Rule 119 of the Competition Appeal Tribunal Rules 2015, and the transitional limitation provisions in Rule 31 of the Competition Appeal Tribunal Rules 2003, applied to claims originating in the CAT. They did not apply to the present proceedings, which had been commenced in the High Court and would involve the transfer of an existing claim. Transfer therefore did not introduce a different limitation period.

5. The transfer was also consistent with the overriding objective in CPR Rule 1.1. It was expressly intended not to alter, limit or exclude any element of the claimant’s claim as constituted before transfer. Any element incapable of transfer, or which would otherwise be altered, limited or excluded, remained within the jurisdiction of the High Court.

First-instance decision. The High Court ordered the transfer of relevant parts of the proceedings to the Competition Appeal Tribunal.