Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings

QUICK READ

On 17 June 2020, the Supreme Court handed down its judgment in the long-running Visa and Mastercard proceedings (Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC and others; Sainsbury’s Supermarkets Ltd and others v Mastercard Incorporated and others [2020] UKSC 24). Here, the Court unanimously upheld the Court of Appeal's ruling that the setting of default multilateral interchange fees – card processing fees which have to be paid by retailers – by Visa and Mastercard was a restriction of competition.

The Court of Appeal judgment related to three separate sets of proceedings in which the Competition Appeal Tribunal and the High Court had taken different approaches to the question of infringement of competition law. The Supreme Court judgment provides welcome clarity on this point.

The Supreme Court also clarified the so-called "broad axe issue", which related to the degree of precision required in the quantification of pass-on (the extent to which the claimant has mitigated its loss by passing on some or all of any overcharge in card processing fees to its customers).

The Supreme Court held that the law does not require unreasonable precision, and insofar as the Court of Appeal required a greater degree of precision in the quantification of pass-on from Visa and Mastercard than from the retailers, it had erred. The burden is therefore not on the defendant to show the exact amount of loss that the claimant has mitigated in order to reduce any damages claimed from it.

Our comment

Overall, the Supreme Court judgment is a resounding success for retailers where establishing liability is concerned. However, it does not resolve the issue of quantum, and hurdles remain for retailers to quantify their damages claims, which may be the subject of future hearings (unless settlements can be negotiated).