Mastercard Incorporated and others (Respondents) v Deutsche Bahn AG and others (Appellants)
Case ID: UKSC 2017/0095
This hearing did not take place as the parties had reached an agreement.
Case summary
Issue(s)
Whether the Appellants’ new claim, introduced by amendment of the original claims, is deemed to have commenced on the commencement dates of the original claims for the purposes of limitation.
Facts
The Appellants are European merchants who provide goods/services in the European Economic Area ("EEA"). The Respondents own and/or operate the MasterCard credit and Maestro debit card schemes. Under certain rules of the schemes, the cardholder’s bank charges the merchant’s bank a transactional fee when the cardholder makes a payment for goods/services, known as a "multilateral interchange fee" ("MIF"). The merchant’s bank, when transferring the value of the transaction (i.e. the purchase price to the merchant), deducts the MIF alongside a sum representing the merchant’s "acquirer" bank’s own charge. Different MIFs apply to different transactions. These include the European Economic Area MIF (the "EEA MIF") and, for transactions which lack certain cross-border characteristics, various "domestic MIFs". The Respondents set the EEA MIF and some domestic MIFs in EEA countries, but other domestic MIFs are set by banks as licensees of the MasterCard scheme. In some countries, an interchange fee is agreed bilaterally between the cardholder’s bank and the merchant’s bank.
A bank which offers acquiring services to a merchant that is domiciled outside of the acquirer’s country is a central acquirer. The scheme includes a default rule called the "Central Acquiring Rule" ("CAR"). That requires the merchant’s bank (i.e. the central acquirer) to pay the bilaterally agreed interchange fee or relevant domestic MIF in the context of a transaction in the merchant's country. If there is no bilaterally agreed interchange fee or domestic MIF, then the rules of the scheme provide that the EEA MIF applies by default.
The Appellants brought claims alleging, amongst other things, that the Respondents violated European Union and domestic competition law in setting the MIFs which restricted competition between acquiring banks causing inflated MIFs. They allege that this in turn inflated the charges payable by merchants to their own banks.
The Appellants did not initially allege that the CAR itself was unlawful. After the proceedings had been commenced, the Appellants applied to amend their claim to also allege that the CAR unlawfully restricted competition between central acquirers causing inflated MIFs to be paid by the Appellants. The judge in the High Court permitted the application, holding that the new claim arose out of "the same or substantially the same facts" as those already in issue in the existing claim, so that the new claim would be deemed to have commenced on the commencement date of the original claims.
The Respondents successfully appealed to the Court of Appeal which held that the new claim was deemed, for the purposes of determining the extent to which the new claim had been brought in time, to have commenced at the later date when permission to amend the existing claim was granted.
Judgment appealed
Parties
Appellant(s)
Deutsche Bahn AG and others
Respondent(s)
Mastercard Incorporated and others
Appeal
Justices
Lord Kerr, Lord Hodge, Lady Black, Lord Briggs, Lord Kitchin
This hearing did not take place as the parties had reached an agreement.