On 5 July 2024 Sir Julian Flaux C sitting in the Court of Appeal (Civil Division) handed down judgement in Merricks v Mastercard Incorporated & Ors [2024] EWCA Civ 759, an appeal concerning whether the Limitation Act 1980 and Prescription and Limitation (Scotland) Act 1973 have been superseded by the Competition Act 1998, and the jurisdiction of the Competition Appeal Tribunal (“CAT”).

BACKGROUND

This matter started as a class action by individuals (“Merricks”) against Mastercard Incorporated, Mastercard International Incorporated and Mastercard Europe S.P.R.L (“Mastercard”) pursuant to s. 47B of the Competition Act 1998 (“CA 1998”) for “unlawful” multilateral interchange fees on card purchases between 22 May 1992 and 21 June 2010. The proceedings are follow-on claims based on the Commission Decision that Mastercard’s cross-border EEA multilateral interchange fees infringed Article 101 TFEU.  

Mastercard’s relied upon the defence of limitation as follows:

• In relation to claims governed by English law and Northern Ireland law, claims based on an infringement prior to 20 June 1997 are time-barred;
• In relation to claims governed by Scottish law, claims based on an infringement prior to 20 June 1998 are time-barred; and
• In relation to claims in respect of purchases by CMs from merchants abroad (i.e. purchases by mail order, internet or telephone), limitation will be determined by the law of the country in which the merchant was based, which will bar some or all of those claims.

The trial was split into several stages. On 19 June 2024, the CAT considered limitation and found in favour of Mastercard. The CAT found:

• There was no deliberate concealment of relevant facts for the purpose of s. 32(1)(b) LA 1980;
• There was no deliberate breach of duty for the purpose of s. 32(2) LA; and
• The application of the limitation rules under English law is not precluded or modified by the EU principle of effectiveness.

CROSS-PARTY APPEALS

Merricks appealed against the limitation issue. Mastercard appealed against the decision that the applicable law governing the claims is limited to English or Scots Law. This article considers only the limitation point.

Merricks advanced four grounds of appeal:

(1) The CAT erred in its application of the principle in Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553 and in relying on obiter dicta of the Court of Appeal in DSG-CA [2020] EWCA Civ 671, [2021] 1 All ER (Comm) 63;

(2) The CAT erred in law in its reasoning as to time-bar for proceedings pre- and post- 1 October 2015 and that the legislator cannot have intended to make this distinction;

(3) The CAT erred in law in failing to address why rule 31(4) was included in the CAT Rules 2003 but omitted from the CAT Rules 2015. This vitiated its conclusion that the omission could not lead to an "unavoidable construction of rule 119(2)" of the 2015 Rules "as affecting previously acquired rights of limitation";

(4) The CAT misdirected itself as to the decision in Deutsche Bahn AG v Mastercard Inc, Peugeot Citroen Automobiles UK Ltd v Pilkington Group Ltd [2016] CAT 14 and thus erred in law by finding that section 47A(4) of the Competition Act 1998 did not relevantly disregard the limitation and prescription regimes.

Counsel for Merricks submitted that all the claims are in time on the basis of section 47A Competition Act 1998 and rule 31(1)-(3) of the 2003 CAT Rules, applied by reason of rule 119(2) CAT Rules 2015, regardless of whether they are time barred under the Limitation Act. Further, the time bar imposed by rule 31(4) CAT Rules 2003 does not apply to proceedings commenced after October 2015, when rule 119 CAT Rules 2015 came into force. Accordingly, the CAT Rules provide a bespoke 2-year limitation regime and the 6-year limitation period no longer applies.

Counsel for Mastercard submitted that section 47A was just an identification provision as to what claims could be brought in the CAT, to which it was no answer that the claims would be statute barred if brought in civil proceedings in Court. They relied upon Deutsche Bahn.

JUDGMENT

Sir Julian Flaux C found that “it is inherently unlikely that Parliament ever intended that claims which had become time barred by 20 June 2003 should somehow be revived and become no longer time barred twelve years later, when the 2015 Rules came into force. A conclusion to that effect would be highly surprising and illogical.” [1]

“...that the effect of omission of rule 31(4) from rule 119 of the 2015 Rules was to revive those stale time-barred claims is even more unsustainable in relation to Scots law than in relation to English law. Under the Scots law of prescription, the effect of the claims becoming time barred is that they were extinguished. There is simply nothing in the CA 1998 or in the 2015 Rules which even begins to justify a conclusion that those extinguished claims were somehow brought back to life by the omission.”[2]

Permission to appeal on grounds of limitation was refused.

CONCLUSION

Whilst the dispute between Merricks and Mastercard is far from over, some of the claim is partially time-barred.

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[1] Merricks v Mastercard Incorporated & Ors [2024] EWCA Civ 759, Para 153

[2] Ibid, para 157