Visa Inc & Ors v Commercial and Interregional Card Claims I Limited & Anor

In assessing suitability for collective proceedings, the Competition Appeal Tribunal has a broad evaluative discretion. The comparison with individual proceedings is only one part of a rounded assessment. The feasibility of individual claims does not by itself make them more suitable. Relevant considerations include procedural advantages and disadvantages, the ease or friction of bringing individual claims, costs, and the Tribunal’s ability to manage the litigation efficiently. No statutory factor has automatic priority. An appellate court should not interfere merely because it might have weighed the factors differently, particularly where the Tribunal has explained its approach and applied its specialist experience. A methodology defect may nevertheless prevent suitability being established, even where collective proceedings are preferable to individual proceedings in principle.

CICC I and CICC II sought collective proceedings orders against Visa and Mastercard concerning alleged competition-law infringements arising from commercial and inter-regional multilateral interchange fees. The proposed proceedings comprised opt-in claims for larger merchants and opt-out claims for smaller merchants.

The Competition Appeal Tribunal refused to make the orders in [2023] CAT 38, principally because the proposals lacked sufficient methodology and clarity, but allowed time for revised applications. It nevertheless concluded that individual proceedings were not more suitable than collective proceedings. Visa and Mastercard applied for permission to appeal, challenging that relative-suitability assessment and its procedural consequences. The central issues were the scope of appellate intervention in CAT case-management decisions and whether the CAT had determined suitability definitively.

Both applications for permission to appeal were refused.

1. Under section 49(1A) of the Competition Act 1998, the proposed challenges were treated, for present purposes, as raising points of law. The Court noted that such a point may include an irrational exercise of discretion outside the decision-maker’s margin or a material finding based on no evidence. The expression “as to damages” was construed broadly, because the relative suitability issue could affect the amount of damages ultimately recoverable or payable. The Court did not finally determine whether every proposed ground was properly a point of law.
2. The CAT enjoys a broad margin of judgment in case-management decisions concerning suitability. The principles in La Patourel apply equally to the choice between collective and individual proceedings. The CAT must form its own view of the relevant factors, but need not address every argument or permutation advanced by the parties. Uncertainty is inherent in complex litigation, and the CAT may adapt its decisions as circumstances change. No factor in the statutory scheme has automatic priority.
3. Suitability requires a rounded assessment. Relevant considerations include the procedural benefits and disadvantages of each form of proceedings, the ease with which proposed class members could commence individual claims, costs, and the efficient future management of the litigation. The fact that individual claims are feasible does not determine the issue. Collective proceedings may remain preferable because they vindicate claims more efficiently and avoid burdens caused by numerous individual proceedings.
4. The CAT had adequately considered the advantages of the MIF Umbrella Proceedings, the friction facing individual claimants, the scale and nature of the classes, judicial resources, and the need for integration. The arguments concerning prior settlements and the narrower scope of the proposed proceedings did not establish an error of law. The right of class members to sue and settle individually was not practically decisive, since persons could be removed from collective proceedings under CAT Rule 82.
5. The CAT’s relative conclusion that individual proceedings were not more suitable did not establish that the statutory suitability requirement had been met. The absence of adequate methodology meant that the CAT could not determine whether collective proceedings were an appropriate means of fairly and efficiently resolving the common issues. The CAT was therefore entitled to conclude that suitability had not been established at that stage.
6. The CAT had adopted a clear position on relative suitability, but was not irrevocably bound to maintain it when reconsidering authorisation and suitability on new material. The Court also observed that, in future cases, the CAT might reserve all aspects of suitability until a revised application was ready for determination.

• Court of Appeal (Civil Division): refused Visa’s and Mastercard’s applications for permission to appeal and upheld the CAT’s approach to relative suitability.
• Competition Appeal Tribunal: in [2023] CAT 38, refused the proposed collective proceedings orders because suitability and related requirements had not been established, while allowing revised applications to be presented.