Walter Hugh Merricks CBE v Mastercard Incorporated and Others -[2022] CAT 50- (10 November 2022)

Key Facts

Issues

• Mastercard argued that the Tribunal's permissive approach to evidence from claimants and refusal of specific disclosure violated its Article 6(1) ECHR rights and common law right to a fair trial. The Tribunal rejected this, noting the pragmatic approach to managing mass claims and the availability of revisiting disclosure decisions if new evidence emerges, which it found did not create an 'inequality of arms'.
• The Tribunal was challenged on whether its case management approach to pass on evidence, which shifted the evidential burden to claimants, was consistent with the Supreme Court's decision in Sainsbury's v Mastercard [2020] UKSC 24. The Judgment clarified that the evidential burden shift does not automatically entitle Mastercard to disclosure, emphasizing the unique complexities of mass litigation and the risk of unproductive individualized evidence gathering.
• Mastercard claimed the Tribunal ignored its pleaded case on supplier pass on (merchants passing costs to suppliers). The Judgment explicitly stated it did not address all pass on issues and allowed Mastercard to raise supplier-specific evidence in future proceedings. The Tribunal noted Mastercard did not present supplier pass on arguments during the May 2022 hearing.
• Mastercard challenged the Tribunal's observation that public interest aspects of mitigation were irrelevant at this stage. The Tribunal clarified it had not decided this issue, only noted the distinction between a duty to mitigate and actual mitigation. No determination was made on this point, making it unappealable at this stage.

Holdings

• Ground 4, which argued the Tribunal wrongly rejected the claimants' duty to mitigate, was dismissed as no determination was made on this issue and the Judgment explicitly stated it did not decide the point.
• Ground 3, concerning the Tribunal's alleged failure to address Mastercard's pleaded case on supplier pass on, was rejected as the Judgment explicitly noted broader pleading issues remain and does not preclude Mastercard from advancing such claims.
• The Tribunal rejected Ground 2, which alleged a breach of Article 6(1) of the ECHR and the common law right to a fair trial, finding no 'inequality of arms' and concluding the ground lacks a real prospect of success on appeal.
• The Tribunal concluded all four grounds of appeal lack a real prospect of success, emphasizing they concern case management decisions necessary for managing mass litigation and no arguable points of law were identified.

Legal Principles

• The Tribunal interprets Section 49(1A) of the Competition Act 1998 to permit appeals on points of law arising from interlocutory decisions that affect the final damages outcome. This includes decisions like striking out claims or case management orders, which are presumed appealable unless explicitly disapplied (e.g., in PACCAR).
• The Tribunal acknowledges that while Section 49 restricts appeals to points of law affecting damages, judicial review remains available as a remedy when no right of appeal exists. This includes cases where interlocutory decisions are not appealable, though judicial review requires permission and may involve a streamlined process.

Precedent Name

• Sainsbury's Supermarkets Ltd v Mastercard Inc
• Dombo Beheer BV v The Netherlands
• PACCAR Inc v Road Haulage Association Ltd
• Hentrich v France
• Edwards v Bairstow
• Enron Coal Services Ltd v English Welsh & Scottish Railway Ltd
• Merricks v Mastercard Inc

Cited Statute

Judge Name

• Sir Marcus Smith
• Ben Tidswell
• Lord Young

Passage Text

• The decision in PACCAR is an example (and we expect a rare one) of such a case, by the Tribunal's own estimation. As Henderson LJ noted in [59], "...we should in my view be very slow to differ from the Tribunal's conclusion that a decision in favour of DAF on the DBA issue would not have marked the end of the road for the potential claimants in collective proceedings, and (by inference) that a solution would probably have been found which would have enabled them to continue with modified funding arrangements which the Tribunal would be able to approve".
• At [55] to [56] of the Court of Appeal's judgment, Henderson LJ considered whether the wording in section 49 (and, in particular, section 49(1A)) was "purely descriptive of the proceedings" (our emphasis) or "descriptive of the type of decision from which an appeal may be brought" (again, our emphasis). Henderson LJ (with whom Singh and Carr LJJ agreed) held that the latter was the case, and we respectfully agree (and even if we did not, we would be bound).
• 41. We therefore refuse permission to appeal on all four grounds. This decision is unanimous.