DSG Retail Ltd & Ors v Mastercard Incorporated & Ors

On a strike-out or summary-judgment application, the defendant must establish that the claim has no realistic prospect of success and that no other reason requires a trial. The court must avoid a mini-trial, particularly where liability depends on disputed facts or difficult questions of developing law.

In EU competition law, companies forming a single economic unit may constitute one undertaking, and decisive influence is ordinarily a fact-sensitive question. It remained arguable that a company forming part of that undertaking, or an association of undertakings, could incur joint and several liability for an infringement without proof that it personally set the relevant fee or rule. Such issues should generally be decided after disclosure and findings on the actual factual matrix.

The claimants, a group of retail companies, brought competition claims concerning Mastercard’s intra-EEA and international multilateral interchange fees and its Honour All Cards rule. They alleged infringements of Articles 101 and 102 TFEU against several Mastercard entities, including the fifth defendant, Mastercard/Europay UK Ltd.

The defendants applied under CPR 3.4 and Part 24 to strike out, or obtain summary judgment on, claims against the fifth defendant for the period after 11 January 2009. They argued that the fifth defendant had no relevant involvement and had been joined principally to enable an election for English law under Article 6(3)(b) of the Rome II Regulation. The central issue was whether the claimants had a realistic prospect of establishing the fifth defendant’s liability.

1. Application dismissed. The defendants failed to establish that the claimants had no realistic prospect of showing that the fifth defendant was liable for infringements relating to the EEA MIF, the International MIF and the HACR after 11 January 2009. The challenged claims disclosed reasonable grounds and were not an abuse of process.
2. The court applied the established approach to strike out and summary judgment. A realistic prospect requires more than an arguable case but need not establish that success is probable. The court must avoid resolving factual conflicts or conducting a mini-trial. Difficult legal questions, especially in developing areas, may be unsuitable for interlocutory determination where their application depends on findings of fact.
3. The defendants accepted that the relevant Mastercard companies, including the fifth defendant, formed part of a single undertaking. It was therefore properly arguable that the fifth defendant could be jointly and severally liable for an infringement committed by that undertaking. It was also arguable that membership of, or representation within, an association of undertakings could give rise to liability for an infringing decision of that association, even without proof that the fifth defendant specifically set the relevant MIF.
4. The authorities concerning the Provimi issue did not finally determine whether one company within a single undertaking could be liable for another company’s infringement. That question was distinct from the test for establishing a single undertaking. Decisive influence remained a question of fact. The fifth defendant’s shareholding, later ownership, possible common management, historical role and involvement in the wider Mastercard scheme justified a full investigation.
5. The Article 102 case raised materially similar factual and legal issues. The court therefore declined to determine liability in advance of trial. The claims were to proceed, with no summary judgment or strike-out order.