CAT Upholds Decision on Collective Proceedings Suitability in Visa & Mastercard Competition Case

Citation: [2024] EWCA Civ 218
Judgment on

Introduction

The case of Visa Inc & Ors v Commercial and Interregional Card Claims I Limited & Anor ([2024] EWCA Civ 218) involves appeals by Visa and Mastercard against a decision of the Competition Appeal Tribunal (CAT) which declined to certify proposed collective proceedings orders for claims about alleged infringements of competition law. The proposed class representatives, CICC I and CICC II, sought permission to pursue collective proceedings against Visa and Mastercard concerning multilateral interchange fees. This decision presents an instructive analysis of the Competition Act 1998, specifically concerning collective proceedings and the suitability requirement for such actions.

Key Facts

The appeals focus on the CAT’s determination that individual proceedings were not more suitable than collective proceedings for the claims in question. Both Visa and Mastercard sought to appeal the CAT’s conclusion, which had implications for the future handling and cost of potential claims against them. The CAT exercised its case management powers, embodied in the MIF Umbrella Proceedings, to manage multiple issues arising from the interchange fee litigation. Moreover, the CAT gave a grace period to the PCRs to present revised proposals, marking the crux of Visa and Mastercard’s appeals to the Court of Appeal.

The legal principles at issue revolve around the interpretation of section 47B(5) and section 47B(6) of the Competition Act 1998, and Rule 79(1) and Rule 79(2) of the CAT Rules. These provisions pertain to the requisites for collective proceedings, including the notion of ‘common issues’ and ‘suitability,’ and the CAT’s discretionary power in certifying these proceedings. The Supreme Court’s decision in Mastercard Incorporated and others v Walter Hugh Merricks ([2020] UKSC 51) provides a policy context, indicating that collective proceedings aim to provide access to justice for those who would otherwise find individual litigation disproportionate or impracticable.

In terms of case management, the CAT enjoys a wide margin of discretion, as noted in La Patourel v BT Group PLC and Another ([2022] EWCA Civ 593). The Court of Appeal would typically not intervene unless the CAT’s conclusions are outside the reasonable bounds of its discretion, drawing irrational inferences that are unsupported by evidence.

Outcomes

The Court of Appeal upheld the CAT’s assessment, denying the permission to appeal on both applications. It emphasized the breadth of discretion afforded to the CAT in case management matters and indicated that collective proceedings may be preferred even if individual proceedings could feasibly convey claims. The judgment acknowledged that the establishment of collective proceedings seeks to enable the fair and efficient resolution of common issues while reducing the administrative and legal complexity inherent to a multitude of individual cases.

Conclusion

The Visa Inc & Ors v Commercial and Interregional Card Claims I Limited & Anor case underscores the extensive discretion accorded to the CAT in the certification of collective proceedings under the UK’s competition law regime. It reaffirms that access to justice can be enhanced through collective actions when individual claims may encounter practical and procedural hurdles. The Court of Appeal’s decision elucidates that the suitability of collective proceedings over individual actions is not merely a matter of the potential claimants’ capacity to sue but encompasses a broader consideration of judicial economy and case management efficiency. This judgment will likely influence future decisions by the CAT and guide legal professionals in understanding the complexities surrounding collective versus individual litigation within competition law.

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