The Competition Appeal Tribunal has handed down a judgment determining several preliminary issues in the £17 billion collective action brought against Mastercard in relation to anti-competitive multilateral interchange fees, following on from the European Commission’s infringement Decision.  In this Insight, we discuss the Tribunal’s rejection of Mastercard’s argument that it could rely on a counterfactual scenario premised on the interchange fees having been set at a lower, lawful level, thereby limiting the claimants’ recoverable losses. We consider in particular the Tribunal’s ruling that this argument was precluded by the binding effect of the decision, or alternatively, by the argument constituting an abuse of process given that Mastercard did not advance it before the Commission.

On 23 March 2023 the UK Competition and Markets Authority (‘CMA’) issued an announcement that it has issued fines totalling nearly £60m to 10 construction firms for illegally colluding to rig bids for demolition and asbestos removal projects in both the public and private sectors.  The largest fine of £17.5m was issued to Erith.  The CMA also exercised its power to disqualify company directors, a power which it first exercised in 2016 (despite having the power to do so since 2003), and disqualified 3 directors of firms involved in the unlawful conduct. The fines handed down by the CMA are significant, particularly given that 8 of the 10 firms entered into settlements with the CMA, and the disqualification of 3 directors sends a strong message to businesses that the CMA is keen to show its teeth and is clamping down hard on cartel activity. It will be interesting to see how many appeals are made against the CMA’s decision and yet more interesting to see whether any actions are brought by affected customers seeking compensation for amounts they were overcharged.

It has long been a mystery to economists, accountants and business people why lawyers have regard to simple interest in commercial cases, in circumstances where companies generally do not (and cannot) borrow money on a simple interest basis. Despite compound interest having been awarded and endorsed in Sempra Metals more than 15 years ago, it is still common for claimants to claim, and for UK courts to award, interest on a simple basis. The Competition Appeal Tribunal’s landmark judgment in Royal Mail v DAF Trucks provides a ringing endorsement of the principles laid down in Sempra Metals and provides insight as to what a claimant is required to prove to successfully claim compound interest.