Merricks v Mastercard and the future of collective redress in the UK: perspectives from leading collective redress practitioners

Hausfeld represented the Consumers' Association in its intervention in the Supreme Court hearing, which took place in May last year. Happily for proponents of access to justice and all those who wish to see the success of opt-out redress, the Supreme Court in December handed down a ruling which endorsed the key principles underlying the introduction of the regime and, in doing so, has laid the foundations for it to now flourish.

It was against this backdrop that Anthony Maton, Hausfeld Global Vice Chair and London Managing Partner, spoke to a number of leading individuals in the field of collective redress – across a variety of professional backgrounds, including the judiciary, academia, economics, and litigation funding - to explore their insights into the judgment and its wider implications for the future of collective redress in the UK. In this article, we review the perspectives they offered on the Merricks judgment, and draw together key themes. We cannot, and we do not attempt to, summarize all of each interviewee’s comments and observations – instead we draw out points of particular note, and provide links to interviews such that readers can access the further detail contained in each.

Judicial interpretation

An appropriate starting point in the interview series was that with former President of the Competition Appeal Tribunal and a key proponent of the opt-out regime introduced via the Consumer Rights Act 2015, Sir Gerald Barling.[2]

Sir Gerald explained the prior limitations on the Tribunal’s jurisdiction at the time he was appointed President of the Tribunal. At that point, the Tribunal could only hear follow-on actions and collective claims brought on an opt-in basis – the latter being very few and far between. Sir Gerald advocated reform to, amongst other things, provide consumers with a more effective means of redress and, to achieve this, he contended that opt-out collective redress was required. The ensuing Consumer Rights Act 2015 introduced just that.

The Supreme Court decision is another key moment in the evolution of the regime. In his interview, Sir Gerald noted that the ruling is likely to be reassuring to claimants because it dictates that the merits of opt-out collective actions will not be examined too closely at the certification stage. This, Sir Gerald said, seems broadly consistent with the aims of the legislation.

With regard to any potential difference in the treatment of consumer and business classes, Sir Gerald observed that the opt-out procedure is primarily intended for consumers and small businesses who could not otherwise bring their individual claims, although there is no reason why, in an appropriate case, larger businesses should be excluded from bringing claims using this same mechanism. Aspects of the still young regime are yet to be tested in practice, Sir Gerald notes, with a key area being that relating to the settlement of opt-out claims.

A Barrister's opinion

Anthony Maton also spoke to Tristan Jones,[3] a Barrister at Blackstone Chambers. Tristan represented Which? before the Supreme Court in Merricks, and acted for the proposed class representative Dorothy Gibson in the first application for a Collective Proceedings Order under the new opt-out regime.

In short, Tristan views the Merricks judgment as claimant-friendly, particularly as – the Supreme Court said – certification is not a test of the merits of a claim. This said, Tristan points out that defendants may now look to raise other hurdles in the form of strike out and/or summary judgment applications at the certification stage, both of which involve some form of assessment of the prospects of the claim.

Tristan notes that the judgment also provides welcome clarification on the approach that the Tribunal should take to the distribution of an aggregate award of damages. The departure from the compensatory principle in this regard sets the opt-out collective regime entirely apart from other collective redress mechanisms currently available beyond the competition space. Standing back, Tristan queries whether the competition opt-out collective regime might eventually serve as a model for further collective regimes in the UK in other areas of law.

The consumer voice

As for Which?'s perspective on the judgment, Lisa Webb[4], Which?’s Senior Lawyer, expressed her support for the Supreme Court’s judgment. As for Which? intervened in Merricks not with reference to the specific facts of Mr. Merricks’ dispute with Mastercard, but rather with the aim of amplifying the consumer voice in the certification debate and in defense of the Court of Appeal’s interpretation of the legislation underpinning the opt-out regime (which Mastercard were seeking to overturn).

Lisa discusses the UK regime in the context of older and more established regimes in the US and Canada and, in common with Tristan, foreshadows the extension of opt-out redress beyond competition law – a reform which would surely have considerable benefits for consumers.

Harbour view

Susan Dunn[5], Chair of the Association of Litigation Funders and the Co-Founder of Harbour Litigation Funding, offers her view on the ramifications of the judgment for the litigation funding sector. Whilst the Merricks judgment lowers the bar for certification of opt-out claims, this will not - Susan says – open the floodgates in the sense of giving rise to unmeritorious claims. Funders won’t relax their strict approach to assessing claims because funders simply can’t afford to fund speculative cases, she says. Nevertheless, the judgment may reassure funders that meritorious claims are very likely to be certified, and this may accelerate the funding process in respect of good claims.

Interestingly, Susan also indicates that funders may be more proactive when it comes to identifying claims to fund, although – she says - ultimately it is for law firms to build and pitch cases to funders.

A Defense Counsel’s take

A defendant’s perspective was provided by Richard Swallow[6], Head of Disputes and Investigations at Slaughter and May, a firm that typically represents defendants rather than claimants. Richard acknowledged that the judgment has brought clarity on aspects of the regime, and – he thinks – will reinvigorate claimant law firms to pursue more collective actions.

However, various issues remain unresolved by the judgment – Richard believes - and he notes both that it is likely that more strike out and/or summary judgment applications will be filed and that the battleground may shift away from the certification test, towards whether or not claims ought to progress as opt-in or opt-out actions. Perhaps unsurprisingly, Richard warned that claimants should stay on their toes.

The Economist

A key aspect of opt-out collective actions is the availability of aggregate awards of damages, in relation to which class representatives must be able to show that they have a methodology to ascertain class-wide harm. Given the UK Supreme Court’s indication that certification does not involve a merits test, and the emphasis on claimants’ right to the quantification of their claim, Economist Robin Noble[7], Partner at Oxera, observed that a key question in the aftermath of the ruling is at what point in the proceedings will the Tribunal wish to delve into the details of the economic arguments?

As for the ability to depart from the compensatory principle in the context of the calculation and distribution of an aggregate award of damages, this, Robin says, is unlikely to move the dial for economists – they already have the tools to calculate compensation for the class as a whole. More generally, Robin says, competition litigation in the UK has changed fundamentally over the last decade or so: damages actions have significantly increased in number and the Supreme Court judgment is likely to encourage many more, particularly at the consumer level.

Academic expert report

Professor Rachael Mulheron,[8] Professor at Queen Mary University London, and a leading expert on collective redress, was struck by the way in which the concept of a collective action was received in Merricks by both the majority and the minority in their respective judgments: both sides took a purposive approach to the interpretation of the Consumer Rights Act and emphasized its objective. This approach may be thought to open the door to a comprehensive, generic collective actions regime for infringements beyond the competition sphere.

Professor Mulheron rightly points out that, in the context of the certification test as a whole, the issues that were considered by the Supreme Court in Merricks were fairly limited in scope. There is a raft of potential questions that haven’t yet received judicial consideration, including an assessment of the costs and the benefits of continuing collective proceedings, and whether the class action is an appropriate means for the fair and efficient resolution of the common issues, amongst others.

Representative view

Phillip Evans,[9] Former Inquiry Chair at the Competition and Markets Authority, and the Proposed Class Representative in Hausfeld’s opt-out collective claim against various banks for manipulation of foreign exchange rates,[10] offers an interesting perspective, not least due to his knowledge of the history behind the introduction of the opt-regime. In his interview, Phillip recalls the attitudes of many towards collective redress over 10-20 years ago as essentially a somewhat foreign concept. He says that the advent of the opt-out regime has brought about a major change, and he expects to see the collective procedural mechanism be made available in other areas of law in the years ahead.

The future of collective redress

Whilst each of the interviews covered above offers a unique viewpoint, a common theme unites all perspectives: that of the predicted rise in the number of collective claims and the growth of collective redress in this jurisdiction. It will of course be fascinating to observe not only how the Supreme Court’s judgment in Merricks is applied in practice, and the development of the opt-out regime for competition law breaches, but also to chart the application of those same principles to other forms of harm, such as consumer law infringements, and hopefully (in the view of the authors at least) the expansion of the regime beyond competition law.