The Court of Appeal has handed down judgment in Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2024] EWCA Civ 759, upholding the Competition Appeal Tribunal’s decision that the CAT Rules 2015 do not abrogate accrued limitation defences. The effect of the decision is that Mastercard is entitled to rely on a limitation defence in respect of the first five years of the Merricks’ class action.
On 19 December 2007, the European Commission found that Mastercard had infringed Article 101 TFEU by reason of its cross-border EEA multilateral interchange fees (“EEA MIFs”), which had since May 1992 been charged by cardholders’ banks (“issuing banks”) to merchants’ banks (“acquiring banks”) in breach of competition law. Mr Merricks has brought a class action on behalf of a vast number of consumers arguing that: (a) the unlawful EEA MIFs resulted in an overcharge on UK domestic and cross-border interchange fees paid by acquiring banks in the UK; (b) this overcharge was passed on by acquiring banks to merchants via a merchant service charge; and (c) merchants in turn passed on that overcharge to consumers, by charging higher prices for all their goods and services.
The class on behalf of which these proceedings are brought comprises all individuals who, between 22 May 1992 and 21 June 2008, when aged 16 and above and resident in the UK, purchased goods and/or services from businesses selling in the UK that accepted Mastercard cards. The class is accordingly estimated to number some 45.5 million people, and the amount sought as aggregate damages stands at some £10bn. It has been described as a “gargantuan” and “massive” set of litigation.
The latest stage of the proceedings concerns Mastercard’s limitation defence (among other matters). Mastercard contended that insofar as claims are governed by English or Northern Irish law, those occurring before 20 June 1997 are time barred under ss.2/9 of the Limitation Act 1980. Mr Merricks contended that all his claims are in-time, because Rule 119(2) of the CAT Rules 2015 abrogated any accrued limitation defence which Mastercard might otherwise have been entitled to rely upon. The effect of his argument was that, in proceedings before the Tribunal, a party’s accrued limitation defence which had been recognised and applied from June 2003 – 30 September 2015 had been annulled, and that claims time-barred for over a decade had sprung back into life.
Mastercard succeeded on this issue. The Court of Appeal upheld the Tribunal’s decision, concluding that Mr Merricks’ construction of the CAT Rules was “not arguable” and refused permission to appeal at a rolled-up hearing.
As a result, English (and Northern Irish) claims are time-barred in respect of any loss suffered by the class members before 20 June 1997. As the Tribunal recognised in a judgment handed-down last month ([2024] CAT 41), this is “undoubtedly of great practical significance” since it accounts for five out of the 18 year claim period.
The Court of Appeal’s judgment also contains an interesting and novel examination of the approach to determining the applicable law of a tort under the Private International Law (Miscellaneous Provisions) Act 1995 (“PILMPA 1995”), which applies to claims arising between 1 May 1996 – 11 January 2009. The Court of Appeal found that in “rare” cases it is permissible to displace the “general rule” under s.11 PILMPA 1995 and identify the applicable law of a tort under s.12, which extends to “wider factors” such as “the litigation as it is being conducted” and the proceedings “as they are presently constituted” (in this case, follow-on collective opt-out proceedings).
Sonia Tolaney KC, Matthew Cook KC and Daniel Benedyk appeared for the defendant, Mastercard, instructed by Freshfields Bruckhaus Deringer LLP.
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