Clarity for consumer claims but Mastercard fight continues

Louise Freeman spoke with Commercial Dispute Resolution about the UK Supreme Court’s judgment in Mastercard v. Merricks, a decision with implications for the country’s class actions regime. Ms. Freeman says that the decision “breathes new life into the class action regime, under which no classes have been certified since it was introduced in 2015.”

The Competition Appeal Tribunal failed to take into account the relative suitability of the claim – whether or not individual proceedings were an option. Ms. Freeman explains that “this substantially lowers the bar, since it will often 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.”

“The Supreme Court (including the two dissenting judges) has been clear that the compensatory principle is not an element of the test for granting a collective proceedings order (CPO), as articulated by Parliament,” she adds, “and that consideration of distribution methods at the CPO stage will often be premature, but not in every case.”

She warns the CAT “will not consider itself under any pressure to certify the class, if it considers it to be unsuitable.”