Merricks Judgement Marks A Turning Point For UK Opt-Out Collective Actions

By: Sebastian Peyer (UEA Competition Policy Blog)

In December 2020 the UK Supreme Court handed down its long-awaited decision in Merricks v MasterCard.[1] This is the first decision of the UK’s highest court on the relatively new opt-out collective action procedure introduced by the Consumer Rights Act 2015. The Court did not disappoint in confirming the claimant-friendly approach to class actions taken by the Court of Appeal. The latter had previously overturned the Competition Appeal Tribunal’s (CAT) decision refusing certification of the class. This decision is likely to mark a turning point for the collective action process in the UK. It will hopefully encourage more opt-out claims and overcome the disappointing track record of zero claims that have received certification so far.

Background

Opt-out collective actions are of great importance to ensuring compensation is paid to those injured by anti-competitive behaviour. Typically, the harm is felt by – or passed down to – large numbers of individual consumers who do not have an incentive to bring an action, or even typically know that they are victims. The opt-out regime was introduced to remedy this.

Mr Merricks, the former Chief Ombudsman of the Financial Ombudsman Services and proposed class representative, sought damages from MasterCard of around £14 billion on behalf of 46 million UK consumers. The EU Commission found that MasterCard had breached EU competition law by imposing a multilateral interchange fee (‘MIF’) for cross-border transactions in the European Economic Area (‘EEA’) in its MasterCard payment schemes. The claim alleged that merchants had passed on the cost of this fee to UK cardholders, although it was not generally possible to determine the exact overcharge for individual consumers, based on the data available.

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