Quinn Emanuel Urquhart & Sullivan has filed an application to appeal the Competition Appeal Tribunal (CAT) decision in the £14bn Mastercard consumer claim.
Quinn Emanuel, which represented Walter Merricks CBE during the initial case, saw its class action claim rejected by the CAT last month because it ruled that the alleged losses suffered by 46 million British consumers caused by unlawfully high credit card fees could not be proven.
In a new development of the case, Mastercard has been given until 8 September to file any submissions in response, following which there may be a hearing before the CAT on the application for permission to appeal.
According to a statement issued by Quinn Emanuel, there is “some legal uncertainty” as to whether there is a direct right of appeal to the Court of Appeal or whether it needs to go to the Administrative Court for a judicial review.
In the CAT’s initial judgment Mr Justice Roth, Professor Colin Mayer CBE and Clare Potter refused an application by Quinn on behalf of consumer rights activist Merricks to grant a collective proceedings order (CPO) that would certify the class of the claimants and allow it to proceed as a class action.
The judgment said that even if it were possible to determine the loss, the significance of the individual issues would mean that it is “impossible in this case to see how the payments to individuals could be determined on any reasonable basis”.
Merricks considers that had the CAT properly applied the relevant legal principles, with due regard to the clear policy intent behind the introduction of the new collective action regime, the claim against Mastercard should have been allowed to proceed.
Merricks also believes that once the Court of Appeal has had an opportunity to consider the legal and policy issues, it will set aside the decision of the CAT and allow consumers to pursue Mastercard for the very substantial financial damage it has caused through its proven illegal anti-competitive conduct.
He said: “I am very pleased that the fight for compensation for the substantial losses that Mastercard has caused to UK consumers continues. In filing the application, the next step has been taken in what could be a long fight.”
Quinn Emanuel partner Boris Bronfentrinker said: “Together with Merricks’ team of highly experienced barristers, we have carefully analysed and considered the Tribunal’s judgment and identified a number of manifest errors in the reasoning and approach of the Tribunal.
“As the first mass consumer collective action, and given the size of the class, complex issues have been raised that the English courts have not had to consider previously. Yet the parliamentary intent in introducing the collective action regime is clear – it is to facilitate consumer claims.
“The claim brought on behalf of 46 million UK consumers is precisely the type of claim that parliament sought to facilitate. All the requirements for the claim to be allowed to proceed were met and, in dismissing the claim, we believe that the Tribunal made legal errors.”
He added: “We consider that when the Court of Appeal gets the opportunity to consider the detailed legal arguments we have prepared, it will rule in Mr Merricks’ favour and allow the claims against Mastercard to proceed. It may take some time for the case to work its way through the appellate courts, but we are confident that ultimately the Tribunal’s judgment will be set aside and the claims of UK consumers will succeed.”
The dispute arose following an infringement decision made against MasterCard by the European Commission over the corporation’s intercharge fees levied in 2015 and 2016 topped the list of The Lawyer’s Top 20 cases for 2017 and is the largest claim brought before the CAT.
Under the Consumer Rights Act of 2015, competition-related collective actions or class actions can be heard before the tribunal, meaning that individuals do not have to actively “opt in” to the action to receive legal representation’ on other words, they are automatically included in the claim unless they specially “opt out”.
Quinn partners Boris Bronfentrinker and Kate Vernon acted for Merricks and instructed Monckton Chambers’ Paul Harris QC, and Marie Demetriou QC and Victoria Wakefield of Brick Court Chambers.
MasterCard was defended by Freshfields Bruckhaus Deringer partners Jon Lawrence, Jonathan Isted, Nick Frey and Mark Sansom, instructed Brick Court’s Mark Hoskins QC, Tony Singla and Hugo Leith, and One Essex Court’s Matthew Cook.
The initial claim was funded by third-party litigation funder Gerchen Keller, which later merged with Burford Capital last year. The funder put a pot of £60m for the case, following a request to increase funding by £20m from the original £40m put aside for the case.
The Lawyer understands that this new claim is also being funded.
Freshfields has been approached for comment.