The Merricks magic

In an opinion article written for the New Law Journal, our Senior Partner and the current Law Society President, David Greene salutes Walter Merrick’s recent class action success in the Supreme Court & puts the case for a wider collective process for redress.

In Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51, [2020] All ER (D) 67 (Dec) LJJ Sales and Leggatt rationalised the ‘opt out’ class action process by quoting from Judge Posner in Carnegie v Household International Inc (2004) 376 F 3d 656, 661, a decision of the US Seventh Circuit Court of Appeals: ‘The realistic alternative to a class action is not 17m individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30’.

Our own process of opt out actions, with one important exception under CPR Pt 19.6, is limited to claims for breaches of competition law. Perhaps the time has come for widening the subject matter.

Europeans (for which purpose I include the UK) have not quite come to terms with the ascription ‘class action’. Perhaps it resonates too much of litigation in the US. The stain of the hot coffee litigation in the US runs deep this side of the Pond…

Read the full article on the NLJ website (subscription may be required) or on David Greene’s LinkedIn post.