Introduction

The case of Visa Inc & Ors v Commercial and Interregional Card Claims I Ltd & Anor ([2024] EWCA Civ 218) marks a significant moment in the realm of competition law and collective litigation in England and Wales. The dispute revolves around Visa and Mastercard's attempt to challenge the Competition Appeal Tribunal's (CAT) refusal to grant permission for their appeal against the CAT’s decision to deny certification of collective proceedings initiated by CICC I and CICC II. These entities sought to represent classes of merchants alleging that Visa and Mastercard's multilateral interchange fees infringed competition law, resulting in financial losses.

Summary of the Judgment

The Court of Appeal heard two applications for permission to appeal brought forward by Visa and Mastercard after the CAT rejected their appeals against the CAT’s initial judgment. The CAT had refused to certify collective proceedings brought by CICC I and CICC II, which sought to represent large and small merchants respectively. The CAT's refusal was based on concerns regarding the focus of the applications, the adequacy of the methodology presented by the class representatives, and the suitability of collective proceedings over individual ones.

Visa and Mastercard contended that the CAT erred in its assessment, particularly arguing that individual proceedings would be more suitable and that the CAT’s decision effectively undermined their ability to manage litigation efficiently. However, the Court of Appeal ultimately refused permission to appeal, upholding the CAT’s discretion and reasoning in managing complex litigation and certifying collective proceedings.

Analysis

Precedents Cited

The judgment extensively references key legal precedents that shape the court's reasoning:

• Mastercard Incorporated and others v Merricks [2020] UKSC 51 (Merricks): Established principles for collective proceedings, emphasizing access to justice and the appropriateness of collective actions in contexts where individual claims may be impractical.
• Trucks CPO Ltd: Cited in relation to the participation of large corporates in opt-in collective proceedings, illustrating that the inclusion of substantial entities does not inherently render opt-in proceedings unsuitable.
• Evans v Barclays PLC and Others [2023] EWCA Civ 876 (Evans): Discussed the scope of appeals on points of law, particularly concerning the exercise of discretion by lower tribunals.
• La Patourel v BT Group PLC and Another [2022] EWCA Civ 593 (La Patourel): Highlighted the broad discretion accorded to the CAT in case management, reinforcing the court’s reluctance to interfere unless there is clear judicial overreach.

Legal Reasoning

The Court of Appeal delved into the CAT's reasoning, affirming the tribunal's broad discretion in managing litigation. The CAT evaluated the suitability of collective proceedings by balancing several factors, including:

• The practicality of managing numerous individual claims versus the efficiency of collective proceedings.
• The administrative burdens and costs associated with both collective and individual actions.
• The potential for judicial resource management and the avoidance of litigation proliferation.
• The adequacy of the methodology proposed by the class representatives to assess infringement and damages.

The CAT concluded that collective proceedings were suitable despite certain procedural and methodological shortcomings, primarily because they offered a more efficient and fair resolution for the involved merchants compared to the fragmented approach of individual claims.

Impact

This judgment reinforces the CAT's authority in certifying collective proceedings and underscores the judiciary's deference to tribunal expertise in complex case management. The decision sets a precedent affirming that as long as tribunals provide reasoned judgments based on a holistic assessment of suitability and manageability, appellate courts are unlikely to overturn such decisions. This has broad implications for future collective litigation, particularly in sectors where systemic issues impact large groups of stakeholders.

Complex Concepts Simplified

Collective Proceedings vs. Individual Proceedings

Collective Proceedings allow a class of individuals or entities to combine their claims into a single lawsuit, making litigation more efficient and accessible. In contrast, Individual Proceedings involve separate lawsuits for each claimant, which can be costly and time-consuming, especially for those with smaller claims.

Suitability Requirement

The suitability requirement assesses whether collective proceedings are the appropriate means to address the common issues among the class members. Factors include the efficiency of resolution, cost-effectiveness, and the ability to manage the litigation without compromising individual rights.

Umbrella Proceedings

Umbrella Proceedings are a form of case management where a series of related or similar claims are managed together under a common framework. This approach aims to streamline the litigation process by addressing overlapping issues collectively.

Conclusion

The Court of Appeal's decision in Visa Inc & Ors v Commercial and Interregional Card Claims I Ltd & Anor serves as a reaffirmation of the CAT's discretion in certifying collective proceedings. By upholding the CAT’s judgment, the court emphasizes the importance of tribunal expertise in balancing efficiency, fairness, and manageability in complex litigations. The ruling provides clarity on the thresholds for appeals concerning collective action certifications, likely encouraging class representatives to ensure robust methodologies and focused applications to meet suitability criteria. Overall, the judgment underscores the judiciary's role in facilitating effective collective redress mechanisms within the competitive law landscape.