Certification of £14 billion Class Action Against MasterCard Refused

On Friday July 21, 2017 the UK’s Competition Appeal Tribunal (the “CAT”) handed down its second class certification decision under the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). It dismissed the application for two reasons. First, the proposed representative failed to show that it could reasonably estimate damages in the aggregate for the class as a whole. Second, even if loss had been suffered and could be estimated across the class as a whole, there was no way to ensure that any payment to an individual class member would bear any reasonable relationship to actual losses. The decision is another indication that the CAT is scrutinizing applications carefully. On the other hand, the CAT’s finding that undistributed proceeds may be used to provide a litigation funder’s investment return will give the litigation funding industry comfort that a return can be made on cases in England.