Court of Appeal dismisses preliminary appeal in class action against Mastercard

Court of Appeal dismisses preliminary appeal in class action against Mastercard

The Court of Appeal dismissed all three inter-party appeals on preliminary issues in the landmark case Walter Merrick CBE v Mastercard Incorporated and others class action.

The appeals before Sir Julian Flaux, Lord Justice Green and Lord Justice Snowdon concerned whether the Limitation Act 1980 and the Limitation and Limitation (Scotland) Act 1973 were replaced by the Competition Act 1998 and the CAT Rules; what law governs claims relating to transactions with foreign merchants; and whether Mastercard is entitled to advance a counterfactual “based on alternative EEA multilateral interchange fees in accordance with Article 101 of the Treaty on the Functioning of the European Union”.

The claim is brought by Walter Merricks, as class representative, on behalf of approximately 45 million UK residents who purchased goods and services with Mastercard between 1992 and 2008. It is alleged that buyers overpaid for their goods because of inflated interchange fees imposed by Mastercard.

In main judgmentwith which Lord Justice Green and Lord Justice Snowdon agreed, Sir Julian Flaux said he would be “prepared to give Mastercard permission to appeal” on the issue of applicable law “given that this issue arises for the first time in the context of collective proceedings and is of some financial significance”.

However, he said that “the Court should take into account that the restriction of competition was definitively decided by the (European) Commission.”

Referring to the issue of limitation, which the CoA found to be non-arguable, the judge held that the CAT had been right to reject Merricks’ arguments.

He added: “While it is true that the limitation provisions of the CA 1998 and the CAT Rules are confusing and confusing… it is inherently unlikely that Parliament ever intended that claims which were time-barred on 20 June 2003 should somehow be revived and no longer time-barred 12 years later when the 2015 Rules came into force. A conclusion to that effect would be highly surprising and illogical.”