Mastercard Incorporated & Ors v Walter Hugh Merricks

The domicile date in opt-out collective proceedings is not fixed by statute or the CAT Rules as the date of the collective proceedings order, or a date close to it. The CAT has a broad discretion, guided by the overall purpose of collective proceedings: facilitating access to justice and vindicating rights. It must also consider the rationale for the domicile date and the governing principles requiring cases to be dealt with justly and fairly. The date may be the date proceedings were commenced where that best serves the statutory scheme. Appellate interference with the CAT’s expert discretionary decision requires an error of law. A claim form is construed objectively; procedural delay does not justify excluding valid claims existing when proceedings began.

Mastercard appealed against the Competition Appeal Tribunal’s order dated 9 March 2022, reported at [2022] CAT 13. The proceedings were proposed opt-out follow-on collective claims under the Competition Act 1998, as amended by the Consumer Rights Act 2015. The CAT had granted a collective proceedings order on 18 August 2021 and fixed the domicile date as 6 September 2016, when the claim form was issued, rather than the date of the collective proceedings order. Mastercard argued that the CAT’s discretion had a narrower statutory purpose and that the claim form had been misconstrued. The central issues were the permissible scope of the domicile-date discretion and the proper construction of the class definition.

Sir Julian Flaux C gave the leading judgment. Lord Justice Green and Lord Justice Males agreed.

1. Disposition. The appeal was dismissed. The CAT had made no error of law in fixing 6 September 2016 as the domicile date.
2. Purpose and scope of the discretion. The overall purpose of the collective proceedings regime is to facilitate access to justice for claimants who could not otherwise obtain redress, and to vindicate rather than impede their rights. This was confirmed in BT Group Plc v Le Patourel [2022] EWCA Civ 593. The rationale for a domicile date is to avoid automatically subjecting defendants to claims by enormous international classes and to ensure a sufficient connection with the United Kingdom. That rationale did not confine the CAT’s discretion to the date of the collective proceedings order or a date close to it.
3. Exercise of discretion. Nothing in the Competition Act 1998 or the CAT Rules dictated when the domicile date had to fall. The discretion was broad, subject to the requirement that it be exercised consistently with the overall statutory purpose. The CAT was entitled to consider the statutory structure, the rationale for the domicile date, the circumstances of the particular case and the interests of justice. Under Rule 4 of the CAT Rules, it was obliged to take account of the requirement to deal with cases justly and fairly. Fixing the claim-form date preserved the relevant United Kingdom connection for persons domiciled there at that time, even if some later moved abroad.
4. Construction and appellate restraint. The CAT had approached the claim form objectively. Its conclusion that no one could have intended valid claims to be lost merely because an unexpectedly lengthy five-year delay preceded the collective proceedings order was not an impermissible inquiry into subjective intention. The Court should be particularly cautious before interfering with an expert tribunal’s discretionary or case-management decision, and no basis for interference was established.

• Court of Appeal (Civil Division) dismissed Mastercard’s appeal against the CAT’s order fixing the domicile date.
• Competition Appeal Tribunal fixed the domicile date as the claim-form date in [2022] CAT 13.
• Supreme Court dismissed Mastercard’s earlier appeal and remitted the collective proceedings application to the CAT in [2020] UKSC 51.
• Court of Appeal allowed the earlier appeal against the CAT’s refusal to certify the collective proceedings in [2019] EWCA Civ 674.
• Competition Appeal Tribunal had initially refused the collective proceedings order in [2017] CAT 16.