The Tribunal’s Reasoned Order concerns the Defendants’ application for permission to appeal the Trial 2 Judgment dated 18 February 2026 ([2026] CAT 11). The Defendants’ grounds of appeal can be grouped as follows: (i) the Tribunal erred in its application of the test for factual causation; (ii) it was procedurally unfair for the Tribunal to adopt the test it did for factual causation; (iii) the Tribunal misdirected itself as to the relevant considerations for drawing adverse inferences; and (iv) the Tribunal erred in holding that its merchant pass-on findings could stand as a finding of pass-on for the purposes of exemption under Article 101(3) TFEU.
The Tribunal refused the application for permission to appeal. Taking the grounds in turn as grouped above, this was because: (i) having thoroughly reviewed the relevant authorities, the Tribunal did not err in holding that factual causation required a direct causative link. with its approach having since been supported by the Court of Appeal’s judgment in Granville [2026] EWCA Civ 409, which was handed down after the Tribunal’s judgment; (ii) there was no procedural unfairness, noting in particular that there was no suggestion that the Claimants had breached any disclosure order or that there were any outstanding disclosure requests; (iii) Mastercard had not explained with sufficient particularity what the Tribunal had failed to take into account, or what irrelevant considerations it had taken into account; and (iv) the Tribunal made no finding regarding Article 101(3).
