Supreme Court gives green light to collective claims

In a landmark and hotly anticipated ruling, the Supreme Court has today handed down its decision in the Merricks v Mastercard case, backing Hausfeld client Which?’s defence of the country’s collective actions regime for competition claims and rejecting Mastercard’s bid to overturn the Court of Appeal’s prior judgment. 

The Supreme Court’s judgment is a resounding endorsement of the opt-out collective action regime and welcome news for advocates of greater access to justice and effective redress. The ruling sets the standard which future collective claims will be required to meet for the purposes of certification and makes clear that prospective claimants should neither face a “mini-trial” nor be expected to provide an overly onerous level of evidence at any early stage in proceedings. 

Lord Briggs, writing the leading judgment, found that the Competition Appeal Tribunal had erred in failing to acknowledge the proposed class representative’s entitlement to the quantification of his claim, notwithstanding the forensic difficulties which may arise in doing so, and in denying certification based on a finding that the claim was not suitable for an aggregate award of damages. The issue of “suitability”, both for collective proceedings and for an aggregate award, is to be interpreted not in the abstract but rather in a relative sense when compared to suitability to be pursued in individual proceedings. Importantly, Lord Briggs also confirmed the Court of Appeal’s finding that the calculation and distribution of an aggregate award of damages need not bear relation to the compensatory principle.

The Supreme Court’s judgment will allow collective actions which had been paused, including that on behalf of millions of train passengers for overpriced tickets, to now proceed. As a result, 2021 will likely be the year which sees the first – if not several – collective claims certified and on track to provide meaningful redress to those harmed by anti-competitive conduct. 

Hausfeld has been involved in the development of the collective regime since its inception and represented Which? before the Supreme Court, alongside Tristan Jones of Blackstone Chambers. Which? intervened in support of the Court of Appeal’s interpretation of the test to be applied at the certification stage and to provide wider context on the importance of the decision in ensuring that the new regime is able to operate effectively. 

Hausfeld Global Vice Chair, Anthony Maton, said:

“This is a revolution in English law. This landmark judgment of the Supreme Court has given the green light for collective actions to be brought on a straightforward and easily understood basis. It paves the way for millions of consumers and thousands of small businesses to be able to bring collective actions against those who have breached competition law – the biggest banks in selling foreign exchange, the train companies in selling fares, the big tech companies who have misused their dominant market position - facilitating access to justice and allowing for the collective exercise of rights which would otherwise go unvindicated.”

Rocio Concha, Which? Director of Policy and Advocacy, said:

"This is a hugely important win for consumers. Which? has campaigned long and hard for an effective collective redress scheme and the Supreme Court's ruling will increase access to justice for consumers and set the standard for collective claims of this nature to proceed to trial.

"From today, the route to collective redress will be fairer, simpler and more attainable, and many cases that are currently on hold will be able to proceed to trial, ensuring victims of anti-competitive behaviour can get the justice they deserve."

Full judgment.

The case was reported extensively in the news: 

Al Jazeera
Financial Post 
Global Competition Review (subscription only)
Global Legal Post
Law360 (subscription only)
The Lawyer (subscription only
Thomson Reuters