CICC I v Mastercard [2024] CAT

This decision was the companion to Visa v CICC I and arose from the same collective proceedings brought by Commercial and Interregional Card Claims I Limited, this time against Mastercard Incorporated and related entities. The underlying claim alleged that Mastercard’s multilateral interchange fees were set at anti-competitive levels, causing overcharges passed on to consumers and businesses. As with the Visa proceedings, the claim was supported by third-party litigation funding that had been restructured following PACCAR. The funding agreement in the Mastercard proceedings included a return to the funder calculated as a multiple of invested capital, together with a cap by reference to total damages recovered. The combination of these two features raised the question whether the cap’s reference to damages was sufficient to bring the agreement within the DBA definition. The CAT held that it was not.

The Tribunal reasoned that the funder’s primary entitlement was determined by the multiple of capital, not by the damages. The cap functioned as a ceiling rather than as the basis of calculation. This distinction was critical: the statutory definition of a DBA requires that the payment to the funder be determined by reference to the amount of damages, and a cap that merely limits a separately calculated entitlement does not satisfy that test. The decision was delivered on the same day as the Visa v CICC ruling and adopted identical reasoning, reflecting the fact that both sets of proceedings involved the same class representative, the same funder, and substantially similar funding arrangements. Together, the Visa and Mastercard decisions demonstrated the CAT’s consistent approach and provided authoritative guidance for other funded collective proceedings involving similar contractual structures. The cases proceeded to the Court of Appeal as part of the consolidated Sony v Neill appeal.