Collective Actions in the Supreme Court
The big news from today’s UK Supreme Court collective action decision in Mastercard v Merricks  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,… Continue reading
Merricks v MasterCard: Collective Actions Reinvigorated
The Court of Appeal today gave its much-anticipated judgment in the application to bring collective proceedings against MasterCard: see Merricks v MasterCard Incorporated and others  EWCA Civ 674. It is a major victory for the Applicant and will reinvigorate the collective proceedings regime, which has seen disappointingly few cases brought since its introduction in 2015. Continue reading
Retrospective interpretation: DSG v MasterCard
The latest battle over limitation in Competition damages claims was a victory for the claimants – see DSG Retail Ltd v MasterCard Inc  CAT 5. In some ways it is a surprising decision, because the Competition Appeal Tribunal has decided that when s.47A of the Competition Act was enacted in 2003, certain claims which were time-barred… Continue reading
Applicable law in competition infringements: Deutsche Bahn
The recent judgment of Barling J in Deutsche Bahn AG v MasterCard offers important guidance on determining applicable law in competition actions. Practitioners dealing with competition infringements which stretch back prior to the entry into force of Rome II in 2009 should take note – particularly when dealing with limitation issues, which are governed by… Continue reading
Market dynamics in the counterfactual: more competitive, not just cheaper
The judgment of Phillips J in Sainsbury’s v Visa  EWHC 3047 (Comm) demonstrates the importance to claimants in competition damages cases of identifying a counterfactual which not only involves lower prices but also involves higher levels of competition. Sainsbury’s case Visa’s payment card scheme required ‘acquirers’ (who process card payments on behalf on merchants)… Continue reading
Collective (in)action? The CAT’s recent judgments on collective proceedings orders
At first glance, two recent judgments from the CAT may give the impression that the new UK class action regime is dead in the water. However, on closer inspection there is much in these judgments that prospective claimants will welcome. The first decision was in the Pride mobility scooters case (see Tom Coates’ blog here).… Continue reading
Illegal counterfactuals: the Court of Appeal shuts the back door
Suppose a defendant to a competition claim runs a defence that, in the counterfactual world in which no anticompetitive conduct occurred, pricing would have been no different; and that the claimant replies, “maybe so, but only because you were at the same time operating some independent anti-competitive scheme, which must also be purged from the… Continue reading
Illegal counterfactuals: bringing in new claims by the backdoor?
It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful elements: see e.g. Albion Water Ltd v Dwr Cymru  CAT 6. In a normal case, C will claim damages,… Continue reading
Arcadia v Visa revisited: the Court of Appeal takes a strict approach to limitation
Competition damages claims can be notoriously complex. According to the Court of Appeal, however, that is no reason to free them from the ordinary English rules of limitation – however strict those rules might be. Unlike the large majority of European limitation rules, where time starts running from the date of the victim’s knowledge, the… Continue reading
“It’s too late baby, now it’s too late”: limitation, competition claims and knowledge
How much knowledge does a potential claimant need before time begins to run against a competition claim against a party alleged to have breached competition law? This was the key question addressed by Mr Justice Simon in the first case in which an English Court has had to consider the effect of s.32 of the… Continue reading
MasterCard miffed as CJEU dismisses appeal
Yesterday’s CJEU judgment in the MasterCard case is a major defeat for a company which faces a huge number of private damages actions from retailers. The judgment also examines some interesting legal points, including in particular relating to the use of “counterfactuals” in competition cases. Continue reading
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