Merricks v Mastercard Incorporated & Ors

A refusal to make a collective proceedings order is appealable on a point of law under section 49(1A)(a) of the Competition Act 1998. It is a decision “as to the award of damages” because it prevents the proposed representative from seeking the aggregate damages remedy available only in collective proceedings.

The continued existence of class members’ individual claims does not alter that conclusion. The statutory language must accommodate the collective proceedings regime and its distinctive remedies. A decision refusing certification is therefore not merely procedural, even though it does not determine the viability of the underlying individual claims.

The proposed representative commenced opt-out collective proceedings against companies in the Mastercard group. He sought aggregate damages for a large class of consumers following a European Commission decision concerning multilateral interchange fees.

The Competition Appeal Tribunal refused to make a collective proceedings order in [2017] CAT 16. It found that the proposed methodology lacked a sufficiently sound data basis and that the proposed distribution would not compensate class members according to their individual losses. The Tribunal subsequently held in [2017] CAT 21 that it lacked jurisdiction to grant permission to appeal.

The proposed representative brought both an appeal and protective judicial review proceedings. At this preliminary hearing, the central issue was whether refusal of a collective proceedings order was a decision “as to the award of damages” within section 49(1A)(a) of the Competition Act 1998, and therefore appealable on a point of law.

1. The Court of Appeal had jurisdiction to hear the appeal on points of law. Patten LJ held that refusal of a collective proceedings order was a decision “as to the award of damages” within section 49(1A)(a) of the Competition Act 1998. Coulson and Hamblen LJJ agreed. The substantive grounds of appeal, including whether they raised points of law, remained for the later hearing.

2. The phrase “as to the award of damages” was not confined to a judgment granting or refusing damages after trial. In Enron Coal Services Ltd (in liquidation) v English Welsh & Scottish Railway Ltd [2009] EWCA Civ 647, the same language in the predecessor provision had been treated as describing the type of relief available and as extending to the grant or refusal of a strike-out application. Nothing in the amended structure or terminology indicated that the phrase should now receive a narrower meaning.

3. Refusal of a collective proceedings order prevented the proposed representative from pursuing an aggregate award under section 47C(2). That remedy was unique to collective proceedings and formed a critical component of the statutory regime. Although class members retained their individual section 47A claims, that did not answer the jurisdictional question. For a consumer class, refusal was likely to end any realistic prospect of collective compensation.

4. The disputed words had to be construed in the light of Parliament’s addition of collective proceedings and their distinctive remedies to the Tribunal’s jurisdiction. The refusal was therefore not merely procedural. It determined that the eligibility requirements had not been met and barred pursuit of aggregate damages in the collective action. The court did not need to decide the wider submission that section 49(1A)(a) applied to every decision made in collective proceedings.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 2527, the court held that refusal of the collective proceedings order was appealable on a point of law under section 49(1A)(a) of the Competition Act 1998. The merits of the proposed appeal were reserved for a later hearing.

2. Competition Appeal Tribunal: In [2017] CAT 21, the Tribunal held that it lacked jurisdiction to grant permission to appeal against its refusal of the collective proceedings order.

3. Competition Appeal Tribunal: In [2017] CAT 16, the Tribunal refused to make a collective proceedings order. It was not satisfied that the proposed pass-through methodology could be applied on a sufficiently sound data basis and considered the proposed distribution inconsistent with compensatory damages.