Mastercard Incorporated & Ors v Walter Hugh Merricks

The Court of Appeal dismissed Mastercard's appeal against the Competition Appeal Tribunal's specification of the "domicile date" in collective proceedings brought under the Competition Act 1998 (as amended). The primary legal principle was that the CAT has a broad discretion to specify the domicile date for the purposes of opt-in/opt-out collective proceedings under section 47B, read with the CAT Rules (notably Rules 73, 80 and 82) and Rule 4 governing case management. The Court held that that discretion is to be exercised in light of the overall purpose of the collective proceedings regime (facilitating access to justice and efficient aggregation of claims) and is not confined to a single narrow territorial purpose (such as ensuring the domicile date coincides with the date of the collective proceedings order).

The Court endorsed the CAT's approach of considering (i) statutory structure, (ii) the rationale for a domicile date, (iii) the factual context of the case, and (iv) the interests of justice. On those grounds the Court found no error of law in the CAT's decision to specify the domicile date as the date the claim form was issued (6 September 2016), because specifying the later CPO date would have had the effect of excluding a very large number of persons who had valid claims when proceedings were started and who died before the CPO was made, with unfair consequences and frustration of the regime's purpose.

Background and nature of the claim. This was an appeal from the Competition Appeal Tribunal concerning the determination of the "domicile date" in collective proceedings under the Competition Act 1998, as amended by the Consumer Rights Act 2015. The proceedings were follow-on damages claims under section 47A for an infringement of Article 101 TFEU found by a European Commission decision of 19 December 2007. The class representative sought a Collective Proceedings Order (CPO) and an opt-out regime for UK-domiciled class members. The Claim Form was issued on 6 September 2016 and defined the proposed class by reference to persons living in the United Kingdom as at the domicile date, to be specified by the Tribunal.

Procedural history. The CAT originally refused certification ([2017] CAT 16). The Court of Appeal allowed the appeal and remitted that decision ([2019] EWCA Civ 674). The Supreme Court dismissed Mastercard's further appeal and remitted the matter to the CAT ([2020] UKSC 51). Following the remittal the CAT granted the CPO ([2021] CAT 28). The CAT later determined the domicile date to be 6 September 2016 (the Claim Form date) rather than the CPO date (18 August 2021). Mastercard obtained permission to appeal to this Court against that determination.

Issues framed by the Court.

• Whether the CAT erred in law or in the exercise of its discretion in specifying the domicile date as the date the Claim Form was issued rather than the date of the CPO.
• Whether the CAT wrongly construed the Claim Form and the accompanying materials when reaching its decision.
• The legal significance of the domicile date as regards the territorial scope of automatic inclusion in opt-out proceedings and the impact of deaths and limitation during delay between issue and CPO.

Court's reasoning and disposition. The Court emphasised that the collective proceedings regime has the broad purpose of facilitating access to justice and efficient aggregation of claims (as explained in this Court's decision in Le Patourel). The CAT's discretion to specify a domicile date is not narrowly constrained to a single territorial objective; rather the Tribunal must exercise that discretion in furtherance of the overall statutory purpose and having regard to relevant factors. The CAT had identified and applied four relevant considerations (statutory structure, rationale for a domicile date, the context of this case, and interests of justice), and it properly took account of the practical consequence that specifying the later CPO date would exclude a very large number of persons who had valid claims when the proceedings were started but died during the nearly five-year delay. The Court found no error of law in the CAT's construction of the Claim Form or in its exercise of discretion and dismissed the appeal.

Subsidiary findings. The Court rejected the submission that earlier materials and interlocutory concessions by the class representative imposed a legal constraint requiring the domicile date to be the CPO date. The Court also held that consideration of limitation and fairness in the exercise of the domicile-date discretion was permissible and, in this case, supported the CAT's decision.

The appeal is dismissed. The Court held that the CAT did not err in law in specifying the domicile date as the date the Claim Form was issued (6 September 2016). The CAT's discretion to set a domicile date under section 47B and the CAT Rules is broad and must be exercised in light of the overall purpose of the collective proceedings regime; the CAT properly considered statutory structure, the rationale of the domicile date, the factual context and the interests of justice, and was entitled to conclude that using the Claim Form date avoided unjustly excluding claimants who had valid claims when proceedings were issued but died before the CPO was made.

Competition Appeal Tribunal initially refused certification [2017] CAT 16; Court of Appeal allowed the appeal and set aside the CAT order ([2019] EWCA Civ 674); Supreme Court dismissed Mastercard's appeal and remitted the matter to the CAT ([2020] UKSC 51); CAT granted the Collective Proceedings Order on remittal ([2021] CAT 28) and later determined the domicile date as 6 September 2016 ([2022] CAT 13), leading to this appeal to the Court of Appeal ([2022] EWCA Civ 1568).