30 Nov 2022

Willkie Farr hails Court of Appeal win as Mastercard suffers new setback in blockbuster UK consumer claim

Estates of three million deceased UK residents can form part of £14bn group action, court rules

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Three million claimants who died between September 2016 and August 2021 can be included in the long-running blockbuster Mastercard consumer class action over the alleged over-charging of credit card fees, the Court of Appeal has confirmed.

A unanimous judgment handed down by Sir Julian Flaux in the Court of Appeal yesterday (29 November), upheld an earlier ruling by the Competition Appeal Tribunal (CAT) that the estates of those alive when the claim was filed but had died by the time the CAT allowed the case to proceed should be allowed to join the £14bn suit, which involves 46 million potential claimants

“The scope of the class… is now settled,” said Boris Bronfentrinker, the lead partner at Willkie Farr & Gallagher, which acted for class representative Walter Merricks, former chief ombudsman of the Financial Ombudsman Service. “Along the way, Mastercard has brought a number of appeals, all of which have proven unsuccessful, and served only to delay these collective proceedings on behalf of UK consumers and unnecessarily run up legal costs.” 

The ruling marks the latest phase of six years of bitterly contested litigation over the class certification of claimants to the interchange fees litigation – a battle that led to a landmark UK Supreme Court judgment in December 2020 when the case was given the green light. 

At issue in yesterday's judgment was a CAT ruling that consumers living in the UK in September 2016 should form part of the ‘opt-out’ class in the so-called ‘domicile date’, a position supported by Marie Demetrious KC of Brick Court Chambers, appearing for Merricks in the Court of Appeal

This was contested by Mastercard, which was advised by Freshfields Bruckhaus Deringer with One Essex Court’s Sonia Tolaney KC in the role of lead counsel. She argued the ‘domicile date’ should run when the collective proceedings order (CPO) started – in August 2021.

Flaux, the Chancellor of the High Court, said that while this was ‘a narrow but important point’, it was a fundamental one given the the Consumer Rights Act, and the CPO regime it created, was aimed at allowing access to justice for individuals. 

He said: ‘Despite the spirited submissions advanced by Ms. Tolaney KC, none of her various points leads to the conclusion that the statutory purpose of the domicile date is limited in the way for which Mastercard contends….’

He added: ‘The effect of Mastercard’s case would be to thwart, at least to a significant extent, the overall purpose of the regime.’ While ‘nothing in the statute dictates when the domicile date should be or defines the purpose of the domicile date’, Flaux ruled, ‘the exercise of discretion by the CAT in the present case was unimpeachable’. 

The court held the CAT’s discretion was unfettered, and the Act allowed the estates to take part. It is understood that Mastercard will not appeal the decision. 

Bronfentrinker, who took the case with him when he moved with his team to Willkie Farr from Quinn Emanuel in October last year, said: “All of its [Mastercard's] attempts to stop the claim so far have failed, and Mastercard has not been willing to apply to strike it out. The case has hearing dates and is ready to be resolved before too long”.

A spokesman for Mastercard told Reuters: “We will continue to fight [the claim] and are confident that, once the facts are presented in court, the case will be thrown out.” 

Freshfields declined comment.
 

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