Collective consciousness: 2022 was another year of fast-paced development for the UK’s collective actions regime

Despite the initially stilted development of the UK’s collective proceedings regime (“regime”) upon its introduction in 2015, 2022 – in common with more recent years – was another year of fast-paced developments.

2022 saw a record number of new actions being launched (12 filed and a further claim announced); the majority being brought as opt-out claims, and all but two alleging standalone abuses (with one claim[1] being brought on a hybrid basis).

2022 also saw six claims certified, and, whilst some actions were given the green light without challenge from defendants,[2] other proceedings saw disputes play out before the UK Court of Appeal (“Court of Appeal”), giving us the important decisions in BT v Le Patourel,[3] London & South Eastern Railway Limited & Ors v Gutmann, and MOL (Europe Africa) Ltd & Others v Mark McLaren Cass Representative Ltd (RoRo).[4]

We explore these and other key developments for the regime below.

Pre-certification

The practical bounds of the regime continued to be at the forefront of UK Competition Appeal Tribunal (“Tribunal”) determinations in 2022, a natural result from many more claims now being able to move forward at pace.

One example was the determination that arose from the first case management hearing in Gutmann v Apple,[5] which took place in November 2022 (not to be confused with Mr Gutmann’s other claims). This hearing clarified an important point: namely, the test for whether document production (or “disclosure”, as it is referred to in the UK) can be sought prior to the certification of a collective claim.

Mr Gutmann had applied to the Tribunal for an order that the defendant, Apple, provide him with a French decision that had fined Apple in respect of similar conduct to that in issue in his claim. Apple resisted the application by arguing that the Tribunal’s Guide stated that the Tribunal could only order such disclosure if it was necessary for the proposed class representative to obtain certification.[6]

Although the Tribunal acknowledged the difficulties in assessing - at the first case management conference - what issues might be in consideration at the later certification hearing (and thus necessary to determine certification), it held that it was not satisfactory to wait until after the certification issues had crystallised to determine whether disclosure should be ordered. Nor had Apple suggested that the disclosure would be burdensome and / or create any other practical or legal difficulties; whereas it was clear the disclosure would assist Mr Gutmann’s claim. In the circumstances, the Tribunal ruled in favour of Mr Gutmann.

Only a few weeks later, a separate panel of the Tribunal considered the converse: an application for disclosure made by the proposed defendants, Mastercard and Visa, in the related interchange collective cases CICC I[7] and CICC II[8] (where, relevantly, CICC I's proposed claim is being brought on an opt-in basis, whereas CICC II’s is opt-out). Mastercard and Visa had sought information about the identity of the merchants who had responded to outreach from the proposed class representatives, and certain information about the nature of those potential class members’ alleged transactions. They argued that the information was potentially relevant and helpful to ascertain the ambit of the proposed class. This knowledge would ultimately assist all parties (including the Tribunal) to determine whether a collective proceedings order (“CPO”) should be made.

The Tribunal agreed with the defendants on the CICC I disclosure requests relating to the identity of the opt-in class. The information sought was relevant to the Tribunal’s consideration whether to grant a CPO on an opt-in basis, but it would not be of material value for an opt-out claim like that brought by CICC II (where the nature of the proposed class is primarily informed by the class definition). However, it would be disproportionate – the Tribunal said – for the proposed class representatives to have to undertake additional work to investigate the nature of transactions conducted by the proposed class. Consequently, the Tribunal ordered the disclosure of the book-building information requested of CICC I (on a generic basis) but made no further disclosure orders.

Certification

Following the seminal UK Supreme Court judgment in Merricks in 2020,[9] challenges to the boundaries of the certification standard remained a key point for determination in 2022 by not just the Tribunal, but also the Court of Appeal.

Further clarification of the certification standard

The precise application of the certification standard featured heavily in the contested CPO hearing in Consumers' Association (Which?) v Qualcomm Incorporated,[10] which took place in March 2022.

The progress of the claim had previously been delayed due to the defendant’s challenge to jurisdiction, which was withdrawn shortly before the scheduled hearing. Qualcomm opposed certification based on the assertion that Which?’s expert’s proposed methodology failed the Microsoft test[11] and an argument that Which? should be forced to obtain an Anti-Avoidance Endorsement (“AAE”) to its After The Event (“ATE”) insurance policy (which generally provides insurance coverage for any costs that might be ordered to be paid to an opponent in the case).

Following the first ‘hot-tub’ – a procedure where both parties’ experts are questioned concurrently – at a certification hearing, the Tribunal held that Qualcomm’s contention regarding Which?’s expert methodology (that it was insufficiently grounded in fact) was “plainly wrong”. The Tribunal also noted that it was extremely unlikely that Which? – “a long-established and reputable charity, with its own in-house lawyers and an experienced team of external professional advisors” – would act in a way that would result in its ATE coverage being voided (and thus, requiring an AAE to come into play), and the cost of incepting an AAE was disproportionately high to account for this unlikely risk. The Tribunal agreed with Which? in relation to all points, issuing a unanimous judgment in May 2022 to grant the CPO. Qualcomm chose not to appeal, making this the first grant of a CPO not to be challenged.

The judgment in Qualcomm came just 12 days after the Court of Appeal resoundingly endorsed the grant of a CPO in BT v Le Patourel.[12] In that case, the Court of Appeal also provided greater clarity on a hotly-contested aspect of the certification standard: whether a claim can be pursued on an opt-in or an opt-out basis.

In short, BT had sought to challenge the Tribunal’s reasoning for certifying Mr Le Patourel’s claim on an opt-out basis, but lost on all counts. Importantly, the Court of Appeal held that there was no “general presumption” in favour of opt-in collective actions over opt-out. Rather, the legislation was drafted neutrally, and so to presume a preference in favour of opt-in claims – as BT argued that the Tribunal’s Guide indicated – would run counter to the legislative intent. Given the passage of time that has elapsed since the Guide was drafted and the development of the regime during that period, the Court of Appeal suggested that the Guide may require updating to bring it in line with the current movement of the regime.

Additionally, the Tribunal was entitled to conclude that class members’ involvement in the claim being limited if an opt-in claim was mandated, and that the financial position of the parties, including a class representative’s ability to attract third-party funding, were relevant considerations for the Tribunal in determining whether the claim should proceed on an opt-out basis. For further detail on this important judgment, you can read our summary here.

In July 2022, the Court of Appeal’s second ruling of the year concerning the certification standard came in London & South Eastern Railway Limited & Ors v Gutmann.[13] The Court once again sided with the class representative, dismissing all the defendant train operating companies’ arguments, and offering further important guidance for the regime. Notably, the appeal dealt with whether issues relating to proof of liability, as opposed to quantum, could be determined on an aggregate basis (or whether the position of each class member needed to be assessed individually). The Court of Appeal determined that a claim for aggregate damages dispensed with the need to undertake an individual assessment of causation and the amount of damages recoverable by each class member. Indeed, it would be problematic for the Tribunal (and inconsistent with the raison d’être of the regime) to certify a claim on an opt-out basis, but then to require the establishing of liability for each class member; thereby instigating an opt-in process “by the back door”. For further detail on this judgment, please see our summary here.

The certification standard was also front and centre in both the certification judgment and then appeal hearings of the opt-out claim brought by Mark McLaren Class Representative Ltd on behalf of UK car-buying individuals and businesses against the participants in a cartel relating to ‘Roll-on, Roll-off’ (“RoRo”) carriage services. The claim was certified on 18 February 2022,[14] but was swiftly followed by the defendants seeking to appeal.[15]

At its core, the appeal (which was heard in November 2022) centred on the aggregate damages methodology put forward by the class representative. It had been advanced based on a particular pricing theory, but several defendants had disagreed with this premise and had argued that an alternative pricing theory should apply. This alternative pricing theory had not however been canvassed as part of the class representative’s methodology. The defendants argued that this omission meant that the class representative’s methodology was fatally flawed, and as such, the CPO application should fail. Separately, a further defendant argued that the methodology failed to meet the test for certification, as it was premised on extreme and untenable factual assumptions, and was insufficiently detailed.[16]

In its remarkably quick decision handed down in December 2022,[17] the Court of Appeal sided with the claimant. The Court found that there was clearly an issue to be tried and a plausible case had been put forward by the class representative that an overcharge had been passed on to class members. Accordingly, any “forensic difficulties” in quantification (such as the correct pricing theory to base the methodology), however severe, could not deny the class the right to trial, as had been established by the Supreme Court in Merricks.[18] Additionally, the Court dismissed the challenge relating to methodology as being too high a bar, and thus inconsistent with the prior case law that had established a relatively lower threshold for certification.[19] As the Tribunal had in fact found that the class representative’s methodology was plausible, the Court criticised the Tribunal for being “sucked into the merits” of related causation issues at the certification hearing; instead, the Tribunal should only have considered these after the relevant facts had been found at trial.[20]

That said, notwithstanding the fact that the Court of Appeal refused to strike out or set aside the claim or the grant of certification, interestingly it also held that the Tribunal had made an error of law in the way that the Tribunal had understood and approached the principles governing its gatekeeper and case management responsibilities. It was incumbent upon the Tribunal – from a public interest perspective – to ensure that, from certification, the case could proceed efficiently to trial. Having identified “the battle lines” relating to the proposed methodology, it should have therefore gone on to address their ramifications vis-à-vis the class representative’s methodology at the CPO stage, so as to lay down a more developed judicially approved trial preparation pathway from the outset (considering those battle lines represented the pivotal dispute in the case). As such, the Court of Appeal remitted the case to the Tribunal, so that it could immediately determine how those issues were to be addressed before any further significant steps in the proceedings were taken.[21] What form and manner this scrutiny takes, however, will be watched with interest.

Business classes

The extent to which the opt-out collective actions regime can and should be utilised by businesses as opposed to consumers was another key area of debate before the courts in 2022.

The issue first arose in RoRo. At certification, the defendants had attempted to argue that Mr McLaren’s expert methodology for assessing class-wide harm was flawed as, in addition to the points discussed above, it included “larger business purchasers" who should not be allowed to form part of an opt-out class (as they would be able to opt-in). This argument was given short-shrift, with the Tribunal refusing to carve out “larger business purchasers” when certifying the claim on an opt-out basis (and this point did not feature on appeal).

The availability of opt-out proceedings for classes comprised largely of businesses and organisations also arose in the Tribunal’s March 2022 255-page judgment in FX,[22] where the Tribunal declined to certify either of the two competing claims relating to the Forex cartels.

In a split decision – unusual for the Tribunal – the majority held that because of concerns about the strength of the claims, the claims should only be certified on an opt-in basis, even though it recognised that this would mean the claims would not proceed at all. The third member of the Tribunal dissented, holding that the claims should proceed on an opt-out basis. The dissent was critical of the majority’s approach, noting the practical difficulties and costs of opt-in proceedings.

Neither application was therefore certified, albeit the Tribunal unanimously held that, if the claims had continued on an opt-out basis, they would have granted carriage of the claim to Mr Evans.

In its Order granting permission to appeal,[23] the Tribunal noted that the applicants had a “real prospect” of persuading the Court of Appeal that the discretion exercised by the majority was sufficiently flawed to be erroneous in law. The appeals will be heard in April, and will address the circumstances in which collective actions can be brought on an opt-in or opt-out basis (further to Le Patourel v BT) and determine the carriage dispute.

Only one purely business class has therefore been certified by the Tribunal so far; but it was brought on an opt-in basis: being that represented by the Road Haulage Association (“RHA”), in the long-awaited certification judgment in Trucks.[24] As with FX, Trucks also saw two competing applicants – albeit the RHA was only seeking certification on an opt-in basis whereas the UK Trucks Claim (“UKTC”) presented both an opt-out claim and an opt-in claim in the alternative.

Whilst the Tribunal determined that both applications were eligible and suitable for certification, it only certified the RHA’s opt-in application (on a more limited basis than applied for), preferring it due to several factors, including that it was brought on an opt-in basis, and the RHA’s expert methodology and relevant class definition.

The UKTC and the defendants have now sought to appeal the Tribunal’s judgment. In its Order granting permission to appeal, the Tribunal held that the majority of the UKTC’s grounds of appeal were dismissed as either not being points of law, or not having any real prospect of success. However, until the appeals are determined, the RHA’s case has been stayed.[25]

In the meantime, the class representatives also face an appeal before the Supreme Court by one of the cartelists, DAF. The issue at stake is a discrete point arising from the Tribunal’s approval of the class representatives’ funding arrangements (specifically whether the provision of litigation funding can constitute a Damages Based Agreement (which are otherwise prohibited in the use of opt-out proceedings in the Tribunal)). The decision on this issue will be pivotal for the collective actions regime and for access to justice more broadly.

Post-certification…

Whilst the certification standard remained a central battle ground in 2022, we also saw how the Tribunal will approach the case management of claims post-certification in the form of rulings dealing with domicile date, split trials, and timetables to trial (amongst others).

Domicile date

The Tribunal’s decision on 9 March 2022[26] in Merricks[27] shed light on a narrow but important point that follows the Tribunal’s decision to certify a claim: consideration of the “domicile date,” which operates to determine which potential class members are automatically included unless they opt-out (because they are domiciled in the UK on the domicile date), and which potential class members will only be included if they opt-in (because they are domiciled outside the UK on the domicile date). The automatic inclusion of potential class members is one of the novel features of the opt-out collective actions regime, and the domicile date is an important date that is included within the CPO.

The domicile date in Merricks was particularly significant because the class had been defined by reference to individuals who were both alive and living in the United Kingdom “at the domicile date.” If the domicile date was held to be the date of certification (which was the date adopted by other collective cases at this point), then the approximately 3 million individuals who had died since the domicile date Mr Merricks argued should apply (being the claim form date) would automatically be excluded from the class. Noting that its decision was case-specific, the Tribunal agreed with Mr Merricks. This was because – among other things – it was the clear intention of the drafting of the claim form that all individuals who were alive when the proceedings were commenced had a claim. However, the Tribunal also noted that, for future collective cases, the domicile date should be kept separate from the class definition and limited to its particular statutory purpose.

Mastercard appealed the Tribunal’s judgment, but the Court of Appeal upheld the Tribunal’s conclusion in a judgment from November 2022,[28] agreeing that should the later date be ordered, a significant number of individuals who had valid claims would be excluded from the class and this would run contrary to the overall purpose of the collective actions regime.

Preliminary issues trials

In Kent v Apple,[29] following the first ‘on-the-spot’ certification decision earlier in the year,[30] Apple applied to split the proceedings into two, with the issues of market definition and dominance to be determined first, and the remaining issues of abuse, causation, and quantum second. Dr Kent opposed the application on the basis that there was no ‘clean split’ between the issues, and the Tribunal agreed, dismissing Apple’s application at the hearing.

Only a few weeks later, a separate panel of the Tribunal in Boyle v Govia[31] ordered that a trial for liability should be split off and heard before issues of causation and quantum, on the basis that time, and cost, could be saved if Mr Boyle lost his case on liability. Notably, however, the parties had agreed to this split.

Regarding trial timetables, Boyle v Govia was also awarded the honour of being listed for the first substantive hearing, with this trial set to take place this summer. The trial in Le Patourel v BT has been listed for January 2024, with Kent v Apple then due to commence in January 2025.

Umbrella Proceedings Orders (“UPOs”)

A key question for the development of the collective actions regime to date has been how collective claims will be managed where separate claims are also being brought by claimants elsewhere in a value chain.

This question was answered on 6 June 2022 when the Tribunal published its Umbrella Proceedings Practice Direction,[32] the effect of which is that the President can now group together different proceedings that “may raise issues, concern matters, or have features that are not only particular to those proceedings but are also ubiquitous”, and may then “be hosted in different Proceedings (“Host Cases”) when they arise out of a broadly similar economic and/or regulatory landscape.” In effect, this allows the Tribunal to take a unified approach to the inevitable overlap in issues between claims. By way of example, of the collective proceedings that relate to the subject matter of the Interchange Fee Umbrella Proceedings, Merricks,[33] although not part of the Umbrella Proceedings,[34] is being jointly case managed alongside them:[35] and the same could be expected of CICC I and CICC II, should they be certified this year. Quite how UPOs will be utilised, and their impact, will no doubt become clearer this year.

Communication between defendants and class members

Shortly after its certification, the parties in RoRo[36] found themselves back before the Tribunal for a contested application, in the wake of the defendants having written directly to several “larger business purchasers” in the class regarding their class membership and some of the suggested consequences of their involvement, including that they would likely face applications for disclosure which would be expensive and time-consuming.

Having copied the class representative’s lawyers to these letters, the class representative proceeded to make an urgent application for directions preventing the defendants from communicating directly with actual or potential class members. Its primary contention was that the Tribunal Rules impliedly preclude such communications. The defendants disputed this, saying no such restriction existed, and that such a restriction would inhibit their human right to freedom of expression.

The Tribunal held that the communications were inappropriate. Although not explicit, there exists a restriction inherent in the Rules that precludes defendants from communicating with class members where a class has been certified (and similarly between proposed defendants and proposed class members at the application stage, where a CPO is being sought).[37] The point of the collective actions regime is that the “represented persons are represented by the class representative.”[38] The Tribunal also held that the regime is designed to ensure that the class representative incurs one set of collective costs. Communications directed to class members could result in unnecessary costs being incurred. Nor did the relevant Rules constitute an infringement of the defendants’ human right to freedom of expression. The Rules are intended to ensure due process, consistent with any relevant human rights. For further detail on this judgment, please see our summary here.

The Tribunal provided further clarification on this issue in Kent v Apple.[39] There, a barrister (not involved in the proceedings) applied for permission to opt-out of the claim after the ordered cut-off, due to the potential impact of the decision in RoRo on his relationships with friends or colleagues who were acting in the proceedings. The Tribunal clarified that the prohibition expressed in RoRo prevents the undermining of the collective actions regime, and as such extends only to communications with a class member concerning his interest in the collective proceedings, not to other communications.

Given the above then, what happens when a defendant is already communicating with potential class members when a collective claim is filed?

According to the Tribunal in CICC I and CICC II,[40] there was no objection to the proposed defendants responding to approaches from potential class members concerning claims that fell outside the scope of the proposed collective proceedings, or which related to existing proceedings that included but were not based solely on the claims in the proposed collective proceedings. However, the Tribunal was not prepared to permit communications among defendants and proposed class members concerning potential claims which were within or partially within the scope of the proposed collective proceedings and not the subject of existing proceedings. This was because it would be difficult to be confident that the proposed class members were properly advised and informed, and that the efficacy of the proposed collective proceedings was not being undermined, without a “reasonably active and invasive degree of scrutiny by the Tribunal of the communications.”[41] The Tribunal did, however, clarify that if the particular circumstances warranted a different approach pending certification of the claims, then it would be open for the parties to ask the Tribunal for further guidance.

Where next?

If 2022 was a busy year, 2023 is set to be even more so. The Tribunal has already heard and granted a contested disclosure application brought by Which? in Consumers' Association (Which?) v Qualcomm Incorporated,[42] and heard the certification application in Dr Lovdahl Gormsen v Meta Platforms, Inc. and Others.[43] Further CPO hearings will follow in Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited and Ors,[44] Julie Hunter v Amazon.com, Inc. and Ors,[45] and others.

Alongside this, further claims will no doubt be filed. Whilst the focus of the claims brought to date has arguably been on Big Tech, further industry sectors will come under scrutiny, with, for example, BSV Claims Limited[46] breaking new ground, being one of the first competition law claims to be brought relating to the digital asset space in the UK.

With many collective claims now progressing to trial, it may be that parties start to turn their minds to utilising the – as yet untested – collective settlement regime, a key advantage of which for defendants is the potential for the reversion of undistributed damages. We may therefore see a landmark first collective settlement this year. Time will tell.

*Lucy Rigby is a Partner, Anna Stelardi is a Senior Associate, Hannah McEwen is an Associate and Sofie Edwards is Counsel in London

Footnotes

[1] 1437/7/7/22 Elisabetta Sciallis v Fender Musical Instruments Europe Limited and Another; 1529/7/7/22 Elisabetta Sciallis v Korg (UK) Limited) and Another; 1530/7/7/22 Elisabetta Sciallis v Roland Europe Group Limited and Another; and 1531/7/7/22 Elisabetta Sciallis v Yamaha Music Europe GmbH and Another.
[2] Dr. Rachael Kent v Apple Inc. and Apple Distribution International Ltd [2022] CAT 45 and Elizabeth Helen Coll v Alphabet Inc. and Others [2022] CAT 39 (in which case, the defendants withdrew their opposition to certification shortly before the certification hearing was scheduled).
[3] Justin Le Patourel v BT Group PLC [2022] EWCA Civ 593.
[4] London & South Eastern Railway Limited, First MTR South Western Trains Limited & Stagecoach South Western Trains Limited Appellants v Justin Gutmann [2022] EWCA Civ 1077; MOL (Europe Africa) Ltd & Others v Mark McLaren Cass Representative Ltd [2022] EWCA Civ 1701 (“RoRo Appeal”).
[5] Justin Gutmann v Apple Inc. and Others [2022] CAT 55.
[6] Ibid. [9].
[7] 1441/7/7/22 Commercial and Interregional Card Claims I Limited v Mastercard Incorporated and Others and 1442/7/7/22 Commercial and Interregional Card Claims I Limited v Visa Inc and Others
[8] 1443/7/7/22 Commercial and Interregional Card Claims II Limited v Mastercard Incorporated and Others and 1444/7/7/22 Commercial and Interregional Card Claims II Limited v Visa Inc and Others.
[9] Mastercard Incorporated and others (Appellants) v Walter Hugh Merricks CBE (Respondent) [2020] UKSC 51.
[10] Consumers' Association v Qualcomm Incorporated [2022] CAT 20.
[11] The Microsoft test is a reference to the test elucidated in the Canadian case of Pro-Sys Consultants Ltd v Microsoft Corpn [2013] SCC 57, for what is required to be shown by the methodology being proposed at the certification stage to quantify damages, which was then determined as the test to be adopted in the UK for the same consideration in the seminal UK Supreme Court judgment in Mastercard Incorporated and others (Appellants) v Walter Hugh Merricks CBE (Respondent) [2020] UKSC 51, at [40] – [42]. As set out at paragraph 54 of the Tribunal’s certification judgment in Qualcomm, the effect of the Microsoft test is “to require [that a proposed methodology can show] a ‘plausible and well-founded method of estimating aggregate damages’ or in other words a ‘workable or credible methodology for calculating damages with a realistic chance of being applied’”.
[12] See note 3 above.
[13] See note 4 above.
[14] Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others [2022] CAT 10.
[15] The Court of Appeal also heard a cross appeal by the class representative; this went to a narrow point concerning the applicable limitation period and is not addressed further in this article.
[16] RoRo Appeal [12].
[17] See note 4 above.
[18] See note 9 above.
[19] RoRo Appeal [68] and [69].
[20] RoRo Appeal [62].
[21] RoRo Appeal [50].
[22] Phillip Evans v Barclays Bank PLC and Others; Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others [2022] CAT 16.
[23] Phillip Evans v Barclays Bank PLC and Others; Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others [2022] CAT 42.
[24] UK Trucks Claim Limited v Stellantis N.V. (Formerly Fiat Chrysler Automobiles N.V.) and Others; Road Haulage Association Limited v Man SE and Others [2022] CAT 25. Although the UKTC has also sought to challenge the certification of the RHA in Trucks.
[25] UK Trucks Claim Limited v Stellantis N.V. (Formerly Fiat Chrysler Automobiles N.V.) and Others; Road Haulage Association Limited v Man SE and Others [2022] CAT 48. A three-day hearing at the Court of Appeal is due to commence on 25 April.
[26] Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2022] CAT 13.
[27] 1266/7/7/16 Walter Hugh Merricks CBE v Mastercard Incorporated and Others.
[28] Mastercard Incorporated, Mastercard International Incorporated and Mastercard Europe SA v Walter Hugh Merricks CBE [2022] EWCA Civ 1568.
[29] Dr. Rachael Kent v Apple Inc. and Apple Distribution International Ltd [2022] CAT 45.
[30] With a second ‘on the spot’ decision following shortly thereafter from a separate panel of the Tribunal in Elizabeth Helen Coll v Alphabet Inc. and Others [2022] CAT 39.
[31] David Courtney Boyle v Govia Thameslink Railway Limited & Others [2022] CAT 46.
[32] Practice Direction 2/2022, available online: https://www.catribunal.org.uk/sites/default/files/2022-06/Practice%20Direction_Umbrella%20Proceedings_06%20June%202022_0.pdf.
[33] See note 27.
[34] 1266/7/7/16 Walter Hugh Merricks CBE v Mastercard Incorporated and Others; and then the four proceedings brought simultaneously in 1443/7/7/22 Commercial and Interregional Card Claims I Limited v Visa Inc. & Others; 1444/7/7/22 Commercial and Interregional Card Claims II Limited) v Visa Inc. & Others; 1441/7/7/22 Commercial and Interregional Card Claims I Limited v Mastercard Incorporated & Others; 1442/7/7/22 Commercial and Interregional Card Claims II Limited v Mastercard Incorporated & Others. We note that the Merricks proceedings are stayed pending the outcome of the Interchange Fee Umbrella Proceedings evidential hearing this May.
[35] For example, in the Limitation and Exemptibility hearing held on 12 January , the CAT allowed Mr Merricks to introduce the Court of Justice of the European Union’s judgment in Volvo and DAF Trucks (Case C-267/20)into its amended pleadings and ordered for the issue to be heard in the corresponding Umbrella Proceedings hearing.
[36] Mark McLaren Class Representative Limited v MOL (Europe Africa) Ltd and Others [2022] CAT 53.
[37] Ibid.
[38] Ibid. [20].
[39] 1403/7/7/21 Dr. Rachael Kent v Apple Inc. and Apple Distribution International Ltd, Reasoned Order, 11 January 2023.
[40] [2023] CAT 1.
[41] Ibid. [29].
[42] [2023] CAT 4.
[43] 1433/7/7/22 Dr Liza Lovdahl Gormsen v Meta Platforms, Inc. and Others.
[44] 1527/7/7/22 Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited; Sony Interactive Entertainment Network Europe Limited; and Sony Interactive Entertainment UK Limited.
[45] 1568/7/7/22: Julie Hunter v Amazon.com, Inc. and others.
[46] 1523/7/7/22 BSV Claims Limited v Bittylicious Limited & Others.