Competition Appeal Tribunal decision to refuse biggest-ever class action “not susceptible to appeal”

Roth: deliberate policy

The Competition Appeal Tribunal (CAT) has refused solicitor Walter Merricks permission to appeal its decision to deny him a collective proceedings order (CPO) that would allow him bring a £14bn action against Mastercard on behalf of 46m people.

It said there was no right to appeal the decision, and even if there was, it would have refused permission.

The claim was a follow-on action after Mastercard was found to have infringed EU law by imposing charges (known as ‘interchange’ fees) on the use of MasterCard debit and credit cards. It was claimed that this increased costs for retailers and consumers.

It was brought on behalf of a class of 46m people who used a Mastercard over a 16-year period, but the CAT dismissed Mr Merricks’ application for a collective proceedings order because it was not satisfied that his experts would be able to get the evidence to show that the illegal fees were then passed on to consumers in the form of higher prices.

Further, it said there was “no plausible way of reaching even a very rough-and-ready approximation of the loss suffered by each individual claimant”.

Ruling on the permission to appeal, the CAT said the threshold question was whether there was jurisdiction to appeal the refusal of a CPO to the Court of Appeal or whether such a decision can be challenged only by judicial review.

It decided that there was not jurisdiction. Mr Justice Roth, president of the CAT, said there was no provision in the Competition Act 1998, as amended by the Consumer Rights Act 2015, to appeal a decision on a CPO.

“We consider that, if the legislature had intended that the novel form of decision by the tribunal making or refusing a CPO should be subject to appeal, [section 49 of the 1998 Act] would have included express provision enabling an appeal to the appropriate court.

“Accordingly, we conclude that there is no jurisdiction to grant permission to appeal under section 49(1A) CA.”

Roth J said this appeared to reflect a “deliberate policy”. He explained: “If a decision refusing a CPO could be appealed by the applicant, then it would seem that a decision granting a CPO would similarly be susceptible to appeal by the respondent.

“Experience from other jurisdictions with a regime of certification of class actions, in particular the United States and Canada, shows that decisions refusing or allowing such actions to proceed typically generate appeals.

“In the attempt to craft an effective system of collective redress for the UK, the legislature has restricted this procedure to the specialist tribunal, so that although there is effectively a parallel jurisdiction in the ordinary courts for competition claims for damages, only the tribunal can hear collective proceedings; and, secondly, it has sought to confine the right of appeal in collective proceedings to decisions on the substantive claims and preclude prolonged litigation in the process of approving the use of the collective procedure for the pursuit of those claims.”

The CAT added that, even if it had considered there was jurisdiction for an appeal, it would have refused permission on the ground that it would have any real prospect of success as Mr Merricks was not claiming in his two grounds of appeal that the tribunal had been wrong as a matter of law.

Mr Merricks and his solicitors, Quinn Emanuel, declined to comment.

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