WM Morrison Supermarkets Plc and Others v Mastercard Incorporated and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Field |
| Judgment Date | 08 October 2013 |
| Neutral Citation | [2013] EWHC 3271 (Comm) |
| Docket Number | Case Nos: 2012 Folios 669–703 and 1305–1311 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 08 October 2013 |
[2013] EWHC 3271 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
Fetter Lane
London EC4A 1NL
Mr Justice Field
Case Nos: 2012 Folios 669–703 and 1305–1311
Fergus Randolf QC and Christopher Brown (instructed by Stewarts Law) for the Claimants
Thomas Sharpe QC and Matthew Cook (instructed by Jones Day) for the 1 st, 2 nd, 3 rd & 5 th Defendants
Mark Hoskins QC (instructed by Speechly Bircham) for the 4 th Defendant
Hearing dates: 7 th October 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The first matter to be dealt with on this CMC is the Claimants' application for leave to amend their Particulars of Claim.
The background to the claim is rehearsed in a judgment delivered on 3 May 2013.
The existing claims advanced against the Defendants are founded on the decision of the European Commission issued on 19 December 2007. That decision concluded that: (a) the Defendants who were addressees of the decision ("the Commission Defendants") were an association of undertakings and consequently their decisions were capable of falling within Article 81 of the EC Treaty, both before the MasterCard IPO and afterwards; (b) the MasterCard scheme could operate without a default interchange fee; (c) the cross border default interchange fees (the "intra-EEA MIFs") restricted competition between acquiring banks by restricting the basis on which acquiring banks set charges for merchants, thereby setting a floor under which the MSCs that acquiring banks charged the merchant. The cross border interchange fees were a restriction of competition by object, because by their very nature they had the potential for restricted competition. Arguments that purported to show that the interchange fees had pro-competitive aims and effects were relevant only under Article 81(3) and not Article 81(1); (d) consequently the Commission Defendants were in breach of article 81(1) of the EC treaty by reason of the intra-EEA MIFs in place between 1992 and December 2007; (e) the Commission Defendants had failed to produce satisfactory evidence that those levels of cross border default interchange fees met the conditions for exemption under article 81(3) of the EC treaty.
On 6 September 2005 the OFT issued a decision holding that the arrangements for the setting by the fourth defendant of the MasterCard default credit card interchange fees within the UK (the "intra-UK MIFs") in the period up to 18 November 2004 were contrary to the Chapter 1 Prohibition. That decision was set aside on appeal on procedural grounds. The Claimants contend that the decision of the Commission can be read across to found a claim in respect of the intra-UK MIF.
In paragraph 36 of the Particulars of Claim the Claimants plead:
F: Breach of competition rules
36. By setting and imposing a minimum price the Claimant had and remains bound to pay to its Acquiring Bank for accepting MasterCard and Maestro payment cards (in its retail premises in the UK) by means of the EEA MIF and the UK MIF, the Defendants acted contrary to Article 81(1) EC Treaty, subsequently Article 101(1) TFEU, Article 53 EEA Agreement and s.2 Competition Act 1998 as amended. By so acting, the Defendants acted in breach of statutory duty.
There are then pleaded particulars of: (1) the applicable legislation; (2) the alleged breach in relation to the intra EEA MIF; and (iii) the alleged breach in relation to the intra-UK MIF. As to the latter, the breach alleged is that the setting and imposition of the UK MIF was a decision by the defendants acting as an association of undertakings and the decision restricted competition in the manner found by the Commission.
The principal amendment for which leave is sought is found in the particulars of breach in relation to the UK MIF pleaded in paragraph 36 of the Particulars of Claim. It reads in principal part as follows:
(3) Particulars of breach in relation to the UK MIF
(1) In relation to the setting and imposition of the UK MIF between 1 March 2000 (in the case of the Fourth Defendant, 12 June 2002) until the determination of this claim, the Defendants, jointly or severally acted and remain in breach of s.2 Competition Act 1998 as amended in that:
(a) the said setting and imposition constituted and remains a decision of an association of undertakings; and
(aa) further or alternatively, insofar as concerns the period from 18 November 2004 onwards, there existed one or more concerted practices between at least the First and/or Second and/or Third and Fourth Defendants in relation to the said setting and imposition. The Claimant shall rely inter alia on the following matters in this respect, all of which demonstrate the close cooperation among the Defendants in relation to the setting and imposition of the UK MIF as of 18 November 2004:
(i) The communication of information relevant to the said setting and imposition between at least the Third and Fourth Defendants as of the revocation of the Fourth Defendant's authority itself to set and impose the UK MIF;
(ii) The close links between the First, Third and Fourth Defendants, notably:
1. The First Defendant's representation on the Board of the Fourth Defendant in the period after 18 November 2004;
2. The Third Defendant's representation on the Board, and participation in meetings, of the Fourth Defendant in the period after 18 November 2004;
3. The Fourth Defendant's representation at all material times on the European Board of the Third Defendant;
(iii) the close links between the Fourth Defendant and its member banks, all of whom are also undertakings of which the First, Second and Third Defendant are each (and/or collectively) an association, and in particular the provision of information by the member banks to the Fourth Defendant for the purposes of the setting and imposition of the UK MIF;
(b) that decision (further or alternatively the said concerted practice(s)) restricted competition between acquiring banks by inflating the base on which acquiring banks set charges to inter alios the Claimant and thereby set a floor under the MSC. In the absence of the said MIF, the prices set by acquiring banks would have been lower to the benefit of inter alios the Claimant and subsequent purchasers; and
(c) the said MIF was not objectively...
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Mastercard Inc. & Others v Deutsche Bahn AG & Others
...relates back to 7 August 2015, when the claimants' application to amend was served. This was the approach adopted by Field J in William Morrison v MasterCard [2013] EWHC 3271 (Comm) to avoid the necessity of the claimants there having to commence a new claim with resultant waste of costs, ......
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D R Jones Yeovil Ltd v Drayton Beaumont Services Ltd
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