The Collective Proceedings Application Notice filed on 6 September 2016, which includes detailed information about the claim and the proposed class representative, can be found here.
The Collective Proceedings Claim Form can be found here.
The Statement of Mr Merricks in support of the claim can be found here.
On 21 November 2016 a case management conference was held by the Tribunal, and its Order, including giving Mastercard time to respond, can be found here.
Skeleton Arguments were filed in advance of the CPO Application Hearing. Mr Merricks’ skeleton can be found here, Mastercard’s skeleton can be found here, and Mastercard’s supplemental skeleton can be found here.
The hearing of the application took place on 18-20 January 2017 before the Tribunal. The Tribunal heard argument on whether the claim should be allowed to proceed as an opt-out collective action and decided against permitting it to proceed. Transcripts of the three days of the hearing can be found as follows: 18 January here, 19 January here, and 20 January here. Mr Merricks decided to challenge that decision by way of appeal and alternatively by judicial review.
The Tribunal delivered its Judgment on 21 July 2017 and dismissed the application. Its Judgment can be found here.
On 10 August 2017, an application for permission to appeal to the Court of Appeal was filed with the Tribunal by Mr Merricks' lawyers. That application can be found here.
On 14 August 2017, a press release regarding the application for permission to appeal was issued, and the press release is available here.
On 28 September 2017, the Tribunal dismissed the application for permission to appeal, and the Tribunal’s decision can be found here.
On 27 October 2017, a press release was issued announcing that Mr Merricks was applying to the Court of Appeal for permission to appeal and at the same time applying to the Administrative Court for permission to challenge the Tribunal’s decision by way of judicial review. The press release can be found here.
On 19 January 2018, Lord Justice Hickinbottom ruled that the Court of Appeal and the Divisional Court (Administrative Court), constituted by the same Lord Justices of Appeal sitting concurrently as both courts, should hear oral argument on Mr Merricks' applications for permission to appeal and to bring a judicial review. The hearing would determine whether Mr Merricks had the right to appeal the Tribunal’s refusal to certify the claim and, if he did, whether he should be given permission to bring that appeal. If it was found that there was no right of appeal, the court would decide whether he should be granted permission to bring a judicial review of the Tribunal’s refusal to certify the collective action. The date for the hearing was set for 31 October 2018.
The Application for Permission to Appeal can be found here, and the Skeleton Argument in support can be found here. The Judicial Review Claim Form can be found here, and the Statement of Facts and Grounds in support can be found here.
A hearing to determine the threshold question of whether a right of appeal against the Tribunal’s decision was available was heard by the Court of Appeal on 31 October 2018. On 13 November 2018, the Court of Appeal issued judgment in favour of Mr Merricks, confirming that a right of appeal existed, and the judicial review claim therefore fell away. The judgment can be found here.
On 5 and 6 February 2019, the Court of Appeal held a hearing regarding the substantive appeal brought by Mr Merricks against the Tribunal’s decision. On 16 April 2019, the Court of Appeal handed down its unanimous decision, upholding Mr Merricks' appeal, which can be viewed here. A press release was issued and can be found here.
On 25 July 2019, the Supreme Court ordered that Mastercard be given permission to appeal the Court of Appeal’s Judgment. On 13 and 14 May 2020, the Supreme Court heard the substantive appeal brought by Mastercard against the Court of Appeal’s decision. Further details regarding the appeal can be viewed on the Supreme Court’s website. On 11 December 2020, the Supreme Court dismissed Mastercard’s appeal, and remitted Mr Merricks' application for a collective proceedings order to the Tribunal. A summary of the Supreme Court’s decision is available here and the judgement is available here.
Mr Merricks’ application for a Collective Proceedings Order was remitted to the Tribunal for redetermination following his successful appeal regarding the correct test to be applied.
On 25-26 March 2021, the Tribunal held the remittal hearing.
On 18 August 2021, the Tribunal issued a judgment on the remittal, applying the correct test, and ruled in Mr Merricks’ favour. The Tribunal decided that it would make a Collective Proceedings Order subject to the litigation funder (Innsworth) providing an undertaking to the Tribunal, and subject to a further hearing on a number of discrete points relating to the scope of the Collective Proceedings Order. A copy of the Tribunal’s judgment can be found here.
On 14 January 2022, the Tribunal held the further hearing on the scope of the Collective Proceedings Order, including what the “domicile date” should be, which means the date on which a person needs to be ‘domiciled’/ residing in the UK in order to be automatically included in the claim (unless they chose to opt out). Mr Merricks said it should be the date when his claim form was filed on 6 September 2016, but Mastercard argued it should be much later on 18 August 2021 which is the date when the Tribunal decided it would grant the CPO, and which would have meant that approximately 3 million people who died in the intervening period of almost five years would not have been included in the claim. The Tribunal agreed with Mr Merricks and issued its judgment on the domicile date on 9 March 2022, which is available here, and in doing so allowed Mr Merricks to seek damages from Mastercard on behalf of all class members, including those who have died since the claim was first filed (through the personal or authorised representative of their estate).
On 30 March 2022, Mastercard applied to the Tribunal for permission to appeal the Tribunal’s judgment of 9 March 2022 in respect of the “Domicile Date”, which will impact whether the claims of people who had valid claims in 2016 but had died prior to August 2021 can be pursued by the personal or authorised representatives of their estates. The Tribunal refused that application for permission on 13 May 2022. The Tribunal’s ruling is available here.
The Collective Proceedings Order was made on 18 May 2022 and is available here.
On 27 May 2022, Mastercard filed a renewed application to the Court of Appeal for permission to appeal the Tribunal’s judgment of 9 March 2022 in respect of the “Domicile Date” (see above). The Court of Appeal granted permission for Mastercard to appeal on 4 July 2022. The hearing of Mastercard’s appeal was held on 3 November 2022 and the judgment from the Court of Appeal was handed down on 29 November 2022 (see below).
The Tribunal held a further case management hearing on 20 and 22 September 2022 to determine the next steps in the case, including issues relating to disclosure, timetabling for future hearings, and amendments to pleadings to include a run-off period. The Tribunal’s judgment on Mr Merricks’ application to amend the Claim Form is available here.
On 25 October 2022, Mr Merricks made an application for a so-called Umbrella Proceedings Order (“UPO”) to allow certain issues in the collective consumer claim to be tried alongside similar issues in claims that have been brought by hundreds of merchants and other businesses against Mastercard (and Visa) relating to similar (and in some cases the same) interchange fees. This application was heard at a hearing on 7-8 November 2022, although the application was stayed until a hearing in May 2023. The hearing in May 2023 will consider what evidence the parties will be permitted to put before the Tribunal to prove what proportion of the interchange fees were passed on by banks to merchants, and subsequently by merchants to consumers (“pass-on issues”).
On 29 November 2022, the Court of Appeal dismissed Mastercard’s appeal challenging the Tribunal’s determination of the Domicile Date. As a result, approximately 3 million consumers who had valid claims when the collective consumer claim was filed and have since died can (through the personal or authorised representatives of their estates) be included in the class.
A Preliminary Issues hearing took place on 12, 13, 16 and 17 January 2023 to address Exemptibility, Applicable Law, and Limitation, specifically:
- whether as a matter of law Mastercard is entitled to advance a counterfactual based on an alternative exemptible EEA MIF pursuant to Article 101(3) (the Exemptibility Issue);
- whether as a matter of law, the laws of England and Wales, Scotland and/or Northern Ireland govern the claims in relation to remote transactions by UK consumers at merchants which were based outside the UK, and/or do some other law(s) apply (the Applicable Law Issue); and
- whether insofar as the claims are governed by English law they are time-barred to the extent the cause of action arose prior to 20 June 1997, and insofar as the claims are governed by Scottish law or Northern Irish law, are any parts of those claims time-barred (the Limitation Issue).
The Tribunal’s ruling (see here) was handed down on 21 March 2023.
Significantly, on the Exemptibility Issue, the Tribunal accepted Mr Merricks’ arguments and ruled that Mastercard is prohibited from asserting that alternative levels of certain interchange fees would be exemptible. In reaching that conclusion, the Tribunal found that the European Commission decision determined that Mastercard’s intra-EEA MIF scheme was unlawful in its entirety rather than any specific level, and this finding was binding on the Tribunal. Furthermore, the Tribunal determined that it would be an abuse of process for Mastercard to be permitted to argue that the EEA MIF in the counterfactual would have been set at a level that could have been ‘exempted’ by the European Commission, given that it could have run that argument before the European Commission but expressly chose not to do so. The effect of the Tribunal’s conclusions is that in assessing damages, the entirety of Mastercard’s intra-EEA MIFs were unlawful and that cross-border transactions should have been settled at par with a zero interchange fee.
Mr Merricks was also successful in persuading the Tribunal that the claims of Scottish consumers that are subject to Scots law are not time barred as Mastercard contended, and that English and Scots law applies to foreign/remote purchases made by UK consumers rather than a host of different foreign laws as Mastercard had contended.
Mr Merricks’ application to amend his Re-Amended Reply was also heard and granted at the Preliminary Issues hearing in January 2023 (see the Tribunal’s Judgment here), and Mr Merricks’ Re-Re-Amended Reply was subsequently filed and served on 18 January 2023. Mastercard served its Rejoinder on 1 March 2023.
The Preliminary Issues Hearing on limitation was in the end limited to the narrow issue of Rule 119 of the Tribunal’s Rules 2015 and Rule 31(4) of the Tribunal Rules 2003. A further hearing to address s.32 Limitation Act 1980 (whether Mastercard had deliberately concealed relevant facts so as to have prevent the limitation period from starting to run) and the equivalent provision under Scots law, s.6(4) of the Limitation and Prescription (Scotland) Act 1973, will be held in January 2024.
A hearing to consider the implications of the European Court of Justice decision in Case C-267/20 Volvo AB (publ.) and DAF Trucks NV v RM on the issue of limitation in these proceedings and the merchant interchange fee proceedings, took place on 24-26 April 2023. The judgment is currently pending.
A hearing to consider evidential issues in relation to pass-on in these proceedings and the merchant interchange fee proceedings took place on 23-25 May 2023. The judgment is currently pending.
A hearing to determine the Causation Issue and the Volume of Commerce Issue will take place on 5 – 31 July 2023.
The Tribunal has ordered that a seven-week trial shall take place, commencing in October or November 2024 (Trial 2), to address all issues relating to acquirer and retailer pass-on in these proceedings and the merchant interchange fee proceedings.