Sainsbury's v MasterCard - Supreme Court liberalises rules on pass-on when assessing competition damages

Last week, the Supreme Court handed down its much-anticipated judgment in Sainsbury’s v MasterCard. The Supreme Court unanimously upheld the Court of Appeal’s ruling that multilateral interchange fees applicable to MasterCard and Visa card payments restrict competition. The decision is also good news for defendants to competition damages claims as the Supreme Court has liberalised the rules on when and how the pass-on of an overcharge can be taken into account in assessing the level of damages payable. The decision is likely to make it easier for defendants to establish the “defence” of pass-on than was previously thought to be the case and could be used to justify extensive requests for claimant disclosure to show how they dealt with the recovery of costs in their businesses.