Collective Actions In The Supreme Court

By: Tristan Jones (Blackstone Chambers)

The big news from today’s UK Supreme Court collective action decision in Mastercard v Merricks [2020] UKSC 51 is not only that Mr. Merricks won and defeated the appeal, but that the Supreme Court approached the issues in a far more claimant-friendly way than even the Court of Appeal had done. 

The headlines are that, when a person applies for a collective proceedings order:

• The statutory question for the Tribunal is not whether the claims are “suitable” to be brought as collective proceedings in some general sense; it is whether they are more suitable to be brought as collective proceedings than as individual claims.  This marks a major shift, and it caused the dissenting judges to warn that the new approach will, “very significantly diminish the role and utility of the certification safeguard”.
• The applicant does not need to meet any particular merits or evidential threshold, other than the ordinary tests applicable if the respondent applies for strike out or summary judgment.
• If the applicant is seeking an aggregate award of damages, he/she does not need to show that it will be possible to distribute the damages to class members in a way which reflects or even approximates each individual’s actual loss.

Most readers will know the background.  Mr Merricks wants to bring opt-out collective proceedings (i.e. a class action) against MasterCard in respect of the loss allegedly suffered by some 46.2 million UK consumers, which he estimates will come to several billion pounds.  The Competition Appeal Tribunal refused to certify the claim.  The Court of Appeal held that the CAT had erred in law.  For more background see our earlier blogs here and here. 

The Supreme Court agreed with the Court of Appeal.  It is an unusual – perhaps unique – decision in that two judges (Lord Briggs and Lord Thomas) delivered judgment in favour of Mr Merricks, and two (Lord Sales and Lord Leggatt) delivered a strongly-expressed dissent.  The reason why Mr Merricks won is that Lord Kerr was the fifth judge on the panel which heard the appeal, and he had expressed his agreement with Lords Briggs and Thomas before his untimely death on 1 December…

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