If justice delayed is justice denied, then this settlement should as much be a cause for commiseration as celebration. Nevertheless, we are optimistic for the future of the collective action regime and for consumer rights in the UK.
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Director Mohsin Patel comments on Merricks v. Mastercard and the future of collective actions
With Mastercard and Walter Merricks reaching an in-principle settlement in the long running class action over credit card fees, Director Mohsin Patel comments on what this case means for the future of collective actions in the UK Competition Appeal Tribunal.
Mohsin’s comments were published in Law.com, The Law Society Gazette, Legal Futures and Solicitors Journal.
“This is excellent news for UK consumers, claimant lawyers, litigation funders and ATE insurers in this case and for collective actions more generally.
“It is regrettable, however, that by the time the CAT approves the settlement – assuming that it in fact does – and consumers receive any recompense, it will be close to two decades after the initial European Commission’s finding of wrongdoing by Mastercard. This is only after an extensive, expensive, highly fought litigation which would not have been possible without the existence of the CAT and the willingness of litigation funders and ATE insurers.
“If justice delayed is justice denied, then this settlement should as much be a cause for commiseration as celebration. Nevertheless, we are optimistic for the future of the collective action regime and for consumer rights in the UK.
“Whilst the funder in this case is clearly disappointed by the proposed settlement, ultimately the Competition Appeal Tribunal (CAT) will make a determination based on numerous factors and must be satisfied that the settlement terms are “just and reasonable”. Given the nascency of the regime and collective settlement orders in the CAT generally, it’s unclear how a tribunal may approach any objection from a funder.
“There is an argument that, notwithstanding the funder’s clear financial interest without which proceedings may never have been brought, that a funder is bound to the fortunes of the litigation regardless of the outcome. That is the inherent nature of the beast and a fact that funders generally must contend with.
Why should opt-out CAT claims be treated any differently? Does the fact that it is such a claim displace the general principle – generally regarded sacrosanct – that litigation funders are passive investors in a case and ultimately it is for the claimant to act in the best interests of the class by acting upon independent legal advice? What, if any, standing does a funder have to challenge an agreed settlement that has been made between two opposing but consenting parties acting upon advice?
“These are all questions that it is now likely the CAT will have to grapple with which should provide further clarity for stakeholders going forward.
“Given the current focus on third party funding regulation, one would hope that all parties behave accordingly.”