The Court of Appeal today dismissed an appeal brought by Mastercard against an order made by the Competition Appeal Tribunal determining the “domicile date” for collective proceedings brought by Mr Merricks.

The function of the domicile date in “opt out” collective proceedings is to determine which class members have to opt out if they do not wish to participate (those domiciled in the jurisdiction on the domicile date) and which members have to opt in if they do wish to participate (those domiciled outside the jurisdiction on that date). The CAT had determined that the domicile date should be the date when the claim form was issued (2016) rather than the date on which the proceedings were certified (five years later given that the proceedings had gone up to the Supreme Court on the issue of certification).  Mastercard sought to appeal the CAT’s determination on the basis that the CAT had failed to act in accordance with the statutory purpose of the domicile date provisions because its order would result in large numbers of class members who live outside the jurisdiction being bound by the proceedings unless they opted out. In dismissing Mastercard’s appeal, the Court of Appeal held that the statutory purpose of the domicile date and the discretion granted to the CAT is not limited to the purpose of avoiding subjecting defendants to claims by large international classes.  On the contrary, the discretion granted to the CAT is unfettered save for the requirement to have regard to the overall purpose of the regime which is to provide access to justice for individual claimants who would not otherwise be able to obtain legal redress.

The judgment is here.