Merricks: Tribunal marked disapproval with costs order
The Competition and Appeals Tribunal (CAT) has imposed an indemnity costs order on Walter Merricks, class representative in the groundbreaking collective action against Mastercard.
The ruling predates the announcement last month that the claim has settled, subject to the tribunal’s approval, which in turn triggered a row with the litigation’s funder.
Rejecting a challenge by Mr Merricks to the single expert chosen by the Mastercard defendants, CAT chair Mr Justice Michael Green said that, during the proceedings Mr Merricks had raised “completely inappropriate” allegations against the defendants of dishonesty and misleading of court.
He said Mr Merricks should have realised that it was inappropriate to proceed with the application after service of a second witness statement by Nicholas Cotter, a partner at Jones Day instructed by Mastercard, and indemnity costs would be imposed from that point.
“Furthermore, there should not have been the allegations of dishonesty and misleading of the court which were quite clearly made at some point, including potentially during the course of this hearing.
“I think that was completely inappropriate in the circumstances, and it is appropriate, therefore, for the tribunal to mark its disapproval of such allegations being made by the award of indemnity costs.”
The judge explained that Mr Merricks had accused Mastercard of “expert shopping”, but he “goes much further than this and says that the tribunal has been misled about the need and reasons for the alleged change in expert and as to the extent of the alleged differences in the approach” between this and another expert in related proceedings.
Mastercard argued that there had been no expert shopping, that the expert in question had “always” been its expert, and that “all possible questions” raised by the decision to go with her had been answered by the witness statements, particularly Mr Cotter’s second statement.
Refusing to go behind Mr Cotter’s statement and dismissing the application, Green J said added “that I do consider that Mr Merricks has gone too far in this application and has made inappropriate allegations that the tribunal has been misled by Mastercard in relation to its expert evidence.
“The application has an extremely tactical feel to it, with Mr Merricks opportunistically seeking to ensure that Mastercard has to use his preferred expert, but because of the way these proceedings have evolved, it was understandable that Mastercard would want to go with one rather than two experts and the allegation of expert shopping was never as strong as Mr Merricks suggested.
“When Mr Cotter’s evidence came in, he should have realised that that was really the end of it.”
The CAT stressed that privilege “should not be lightly waived”. It said: “We do not believe that a party should be able to say, ‘We think you have been expert shopping and, because you have not explained how you chose one expert over another, you must be required to disclose privileged material that may or may not show an illegitimate reason for the change’.
“In any event Mr Cotter has said effectively on oath that the decision was not based on [the other expert’s view on the key issue] and that is an end to the matter.”
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