What is a collective action?

Collective actions, sometimes referred to as “class actions”, group together claims with common characteristics.

Strength in numbers

There are different ways of bringing collective actions in English law, however, in this case, the collective actions will be brought before the Competition Appeal Tribunal, a court which specialises in cases involving competition law. Under this regime, a class representative – this can be an individual, an organisation or a special purpose vehicle – issues a claim on behalf of the group of claimants; the class representative may or may not be a member of the claimant group themselves. All of these claimants are called “members” of the class.

If a collective action is successful, the members may be awarded compensation without having to go to court individually. The collective action regime, therefore, allows for groups of claimants who have suffered loss to seek redress in circumstances where, without it, the time and financial cost and the risk of bringing an action individually would be too great for most claimants.

Starting a collective action

The class representative will work closely with a team of solicitors, barristers and economists to build the case and represent the members before the Competition Appeal Tribunal.

The claim must be ‘certified’ (or approved) as a collective action by the Tribunal before it may be heard at trial. The process of certification is, in effect, a screening stage to determine whether or not the claim is suitable to be brought as a collective action; the class representative and the defendant(s) will make submissions for and against the claim being certified. Assuming the claim is certified, the matter may proceed to trial and the Tribunal will hear submissions by both sides on the issues in dispute, supported by witness and expert evidence, before determining the claim.

Businesses who register their details on the website will be updated on the progress of the case.

Being part of a collective action

When the Tribunal ‘certifies’ the collective action, it will also confirm who is included within the class of claimants.

Class members will not have an active role in the collective proceedings. They can, however, stay informed about the progress of the case to see if they will be entitled to compensation.

In this case, for legal and technical reasons, we are bringing two types of collective action against each of Mastercard and Visa: an ‘opt-in’ claim brought on behalf of claimants with an average annual turnover (pre-Covid) of £100 million or more and an ‘opt-out’ claim brought on behalf of claimants with an average annual turnover (pre-Covid) of less than £100 million.

Members of the ‘opt-out’ claims are automatically included unless they opt out of the proceedings, although they will still need to register their details to receive any compensation. Members of the ‘opt-in’ class must formally opt in to the proceedings, although they will not be able to do this until the claims are certified. It is, therefore, in the interest of potential members of the ‘opt-in’ claims to keep an eye on the progress of the collective action, so that they can act quickly when it is time to join the claim.

Getting your compensation

Members may be entitled to compensation if the collective action is successful and damages are awarded, or if the parties settle.