Walter Hugh Merricks CBE v Mastercard Incorporated & Ors

Under the Private International Law (Miscellaneous Provisions) Act 1995, section 11(2)(c) requires a geographical analysis of the events constituting a tort when it was committed. Section 12 permits displacement of that rule by wider factors, including the issues and parties in the proceedings. In follow-on collective proceedings involving aggregate loss in the United Kingdom, UK law may therefore govern limitation, prescription, causation and quantum. Accrued limitation rights are not revived unless that result is unavoidable, and section 47A(4) of the Competition Act 1998 does not remove limitation defences. A binding Commission infringement decision concerning Mastercard’s EEA MIF architecture precluded an alternative positive-MIF counterfactual for the relevant period. The appropriate counterfactual was no or zero EEA MIF.

The proceedings were follow-on collective damages claims brought by the class representative for consumers resident in the United Kingdom who purchased from merchants accepting Mastercard cards. The claims arose from the European Commission’s infringement decision concerning EEA multilateral interchange fees.

The Competition Appeal Tribunal decided three preliminary issues in [2023] CAT 15: limitation and prescription, the law governing transactions with foreign merchants, and whether Mastercard could rely on an alternative exemptible EEA MIF under Article 101(3) TFEU. It held that some claims were time-barred, English or Scots law governed the relevant claims, and Mastercard could not advance the proposed counterfactual. Mastercard appealed on applicable law and exemptibility, while the class representative sought permission to appeal on limitation and prescription.

The Court of Appeal unanimously dismissed Mastercard’s appeals. It refused the class representative permission to appeal on limitation and prescription.

1. Applicable law under the 1995 Act. Section 11(2)(c) of the Private International Law (Miscellaneous Provisions) Act 1995 requires the court to identify the elements of the events constituting the tort, locate them geographically, and assess their significance by reference to the intrinsic nature of the tort. The assessment concerns the tort when committed, not the issues disputed or investigated in later proceedings. This prevents a floating applicable law. Section 12 is broader. It permits consideration of the litigation as constituted, including the parties, the issues, and the consequences of the tort. Because the infringement had been definitively established and the proceedings sought aggregate consumer loss connected with the relevant UK jurisdictions, it was substantially more appropriate for English or Scots law to govern the relevant issues. [146]-[151]
2. Common law. The CAT correctly applied the double-actionability rule and its exceptional departure where clear and strong grounds exist. The multiple foreign markets involved in remote purchases did not provide a single lex loci delicti. The exception therefore properly made the law of the place where loss was suffered applicable to limitation and prescription. [152]
3. Limitation and prescription. Applying Yew Bon Tew v Kenderaan Bas Mara and DSG Retail Ltd v Mastercard, accrued limitation rights were not abrogated by the omission of rule 31(4) from the 2015 saving provision. A contrary intention did not appear, and revival of claims already time-barred by 20 June 2003 was not unavoidable. Section 47A(4) of the Competition Act 1998 merely identifies claims that may be brought before the CAT; it does not extinguish limitation or prescription defences. Scots prescription was even clearer because the underlying obligations had been extinguished. [153]-[158]
4. Exemptibility. The Commission decision was binding under Article 16(1) of Regulation 1/2003. Mastercard had chosen to justify the existence of its EEA MIF system in principle, rather than a particular or lower level by empirical evidence. The decision therefore addressed Mastercard’s EEA MIF architecture for the relevant period and was not confined to the notified levels. Recital (13) concerned possible future MIFs and did not alter that conclusion. The correct damages counterfactual was consequently no or zero EEA MIF. The alternative abuse-of-process argument was left undecided because it was unnecessary to the result. [159]-[164]

1. Court of Appeal (Civil Division) — In [2024] EWCA Civ 759, Mastercard’s appeals on applicable law and exemptibility were dismissed. The class representative was refused permission to appeal on limitation and prescription.
2. Competition Appeal Tribunal — In [2023] CAT 15, the CAT held that certain claims were time-barred, that English or Scots law governed the relevant transactions, and that Mastercard could not rely on an alternative exemptible EEA MIF counterfactual.