UK Supreme Court Lowers the Bar for Collective Actions
December 14, 2020, Covington Alert
The UK Supreme Court has ruled in favour of Walter Merricks, the former head of the UK Financial Ombudsman Service, in a hotly-anticipated judgment in the first opt-out competition class action brought in the UK.
Background
Mr Merricks is the proposed class representative for 46.2 million people who, between 22 May 1992 and 21 June 2008, purchased goods and/or services from businesses in the UK that accepted MasterCard cards. Mr Merricks has valued that claim at in excess of £14 billion (and this sum will likely now be even greater, with interest having continued to run since the claim was filed in September 2016). Our commentary on the earlier Court of Appeal decision in the case, with which the Supreme Court largely agreed, can be found here.
Outcome
The Supreme Court has dismissed MasterCard’s appeal, which means the case will now go back to the Competition Appeals Tribunal (“CAT”) for a second attempt by Mr Merricks at obtaining a Collective Proceedings Order (“CPO”), but this time with clearer guidance as to the threshold. Importantly, that threshold has been lowered by the Supreme Court, making it more likely that CPOs will be made going forward. The many cases waiting in the wings can now move forward to their own CPO hearings, with more certainty as to the threshold the claimants must meet.
The lowering of the bar from the standard set by the CAT seems based—at least in part—on policy considerations, i.e., that collective proceedings have been introduced for a purpose, and it is not the job of the CAT to set up too many hurdles.
Two points of immediate note in the Supreme Court’s judgment are:
1. The lowering of the bar in respect of the suitability of the claim. The Court found that this is not to be considered in the abstract, but in relative terms, i.e., whether the claim is more suitable to proceed on a collective basis than individually. This substantially lowers the bar, since it will be more challenging to argue that it would be better for a claim to be brought by each individual consumer than on a collective basis.
2. The firm guidance from the Supreme Court that the compensatory principle is not an element of the test for granting a CPO. On this point, the two dissenting judges also agreed, meaning any suggestion that this forms part of the test falls away entirely.
The case will now go back to the CAT for a further CPO hearing. Whilst the Merricks case lives to fight another day, it has not yet been given the go-ahead as a collective claim, and is likely some years away from a trial on the merits (if it ever gets to that stage at all).
The Supreme Court specifically did not criticise the CAT’s detailed questioning and cross-examination of experts at the initial CPO hearing, noting that this achieved “both greater clarity and a considerable improvement in the quantification methodology then being proposed on Mr Merricks’ behalf, in a case of unprecedented size and complexity”. It is likely, then, that the further CPO hearing in this case—and CPO hearings for other complex cases—will be hotly-contested hearings, with detailed questioning of experts.
Unique procedural issue
Another interesting challenge arose for the Supreme Court in this case. Handing down of the judgment was recently delayed following the unfortunate passing of the former Supreme Court justice, Lord Kerr, who had presided at the hearing. This resulted in a perhaps unique procedural issue for the Court to consider.
The judgment was going to be a 3:2 majority decision dismissing the appeal. However, following Lord Kerr’s death, the panel for this appeal was re-constituted to include only Lords Briggs, Sales, Leggatt and Thomas, leaving the four judges split 2:2 (Lord Kerr having been part of the majority). The dissenting judges (Lords Sales and Leggatt) agreed to change their position from dissenting to dismissing the appeal, such that the 3:2 majority outcome could be given effect, in accordance with Lord Kerr’s views. Had they not done so, with the Supreme Court evenly divided, the case would have had to have been re-argued before a different constitution of the Court, at great expense and further delay.
We will be considering the case in more detail and commenting further in the coming weeks. If you would like to discuss the case in the meantime, please do contact the authors.
If you have any questions concerning the material discussed in this client alert, please contact the following members of our Antitrust/Competition practice.
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