Sprung Link Text
The U.K. Competition Appeal Tribunal (CAT) last week certified the well-publicized Mastercard class action litigation. In our December 2020 perspective “All for One and One for All: UK Supreme Court Guidance on Collective Proceedings in Competition Appeal Tribunal” we covered the important judgment of the Supreme Court in Mastercard. At issue was the correct approach to certifying “collective proceedings” (i.e. class actions) for follow-on damages claims in the CAT. Although the Mastercard case was denied certification in the CAT back in 2017, it was remitted to the CAT for reconsideration following the successful appeal in the Supreme Court.
By way of recap, the Supreme Court gave guidance on the correct test to apply at the certification stage of collective proceedings, confirming that the threshold for certification was lower than the CAT had decided it should be and noting the following three key considerations in particular:
When the case was remitted to the CAT, Mastercard did not oppose certification. There remained, however, two technical issues between the parties, which the CAT decided in favor of Mastercard:
As the CAT’s confirmation of certification of the class action reflects the Supreme Court’s “lowering of the bar” in December 2020, it is not unexpected. Nonetheless, the CAT’s decision marks the first certification in the CAT of collective opt out proceedings and is a significant development in U.K. litigation. Because of the uncertainty as to the correct approach to certification prior to the Supreme Court’s decision late last year, this decision may add to the anticipated momentum behind competition class actions following the Supreme Court’s decision and heighten the expectation that more substantial competition class actions (both those that were on hold pending the Supreme Court’s judgment and others not yet commenced, and across a range of industries) will now proceed or be commenced in the U.K.
 Walter Hugh Merricks CBE v Mastercard Incorporated and Others  CAT 28
 Mastercard Incorporated v Walter Hugh Merricks  UKSC 51