Following the Competition Appeal Tribunal’s 6 July 2022 judgment in relation to the issue of pass on (namely, the precise method by which the pass-on issue is to be determined by the Tribunal), Mastercard sought permission to appeal on four grounds, mainly concerning the extent of disclosure and witness evidence which would be appropriate to deal with the issue. On 10 November 2022, the Tribunal handed down its decision.

Mastercard’s application also gave rise to an interesting procedural question: does a right of appeal even exist in respect of the decision it seeks to challenge? If no such right exists then the question arises as to whether Mastercard could proceed to challenge the decision by way of judicial review.

The Tribunal considered this procedural question first, focussing on section 49 of the Competition Act 1998 (further appeals from the Tribunal) and how it was readily apparent from the drafting that it was the intention of Parliament to circumscribe or limit the appeals that could be made from the Tribunal to the “appropriate court”. The Tribunal noted that “[t]he restrictions contained in section 49 have – in recent months – generated something of an industry before this Tribunal, in that careful and well-advised parties seeking to appeal Tribunal decisions also issue “protective” applications for judicial review. The amount of uncertainty engendered by the section 49 restrictions, and the costs thrown away on the part of the parties and the courts (including this Tribunal and the Administrative Court) are significant. This Ruling is just the latest example of this problem.”

The Tribunal determined that it was appropriate to construe section 49 widely in permitting appeals to the “appropriate court” rather than narrowly because there is no jurisdiction to permit the appeal at all. That was considered proper because an appeal of a Tribunal decision would be more appropriate than judicial review (a right to which may not always exist in any event). The Tribunal further noted that, in this particular case, were permission to be granted the “appropriate court” would be the Court of Appeal.

Turning then to the grounds on which Mastercard sought permission to appeal, the Tribunal did not consider any to have a real prospect of succeeding on appeal and, with respect to Mastercard’s argument that the July judgment wrongly ignored Mastercard’s pleaded case on pass on, the Tribunal decided there was nothing to appeal as it had made no determination in this regard, simply that there were broader pleaded issues to be considered in due course.

Categorising Mastercard’s grounds as more akin to “complaints about a case management decision”, the Tribunal therefore unanimously refused permission to appeal on all four grounds. The case continues with an appeal also pending before the Court of Appeal in respect of the domicile date issue (more on which here).