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Supreme Court to hear Mastercard CPO appeal

Supreme Court: Court of Appeal had refused permission

The Supreme Court has granted Mastercard permission to appeal against the Court of Appeal ruling that kept the massive £14bn class action over interchange fees alive.

The appeal court decided in April [1] that the Competition Appeal Tribunal’s 2017 judgment [2] denying the representative claimant, solicitor Walter Merricks, a collective proceedings order (CPO), contained errors of law and that the tribunal mis-directed itself in applying the new regime.

The court ordered that the application for a CPO be remitted to the tribunal for a re-hearing and denied permission to appeal.

The biggest opt-out claim in English legal history, it is 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 is claimed that this increased costs for retailers and consumers.

It is brought on behalf of a class of 46m people who used a Mastercard between May 1992 and June 2008.

Announcing its decision to grant permission to appeal, the Supreme Court said the two issues it would consider were the legal test for certification of claims as eligible for inclusion in collective proceedings, and the correct approach to questions regarding the distribution of an aggregate award at the stage at which a party is applying for a CPO.

In July, the third-party litigation funder that stepped in late in the day to fund Mr Merricks’ appeal confirmed that it was backing the entire case [3].

Innsworth Litigation Funding said it has agreed to “fully fund” the action, in a move that placed it firmly in the funding big league.

At the time, Innsworth had not yet sought to hedge the risk with after-the-event insurance.

Innsworth used to be called Bentham Europe, which was a joint venture between IMF Bentham, the leading listed Australian funder, and US hedge fund Elliott Management. IMF sold its 50% [4] to Elliott in 2016, and it was renamed a year later.