FOI request detail

Costs and agreement associated with interchange fee litigation

Request ID: FOI-2912-1819
Date published: 28 February 2019

You asked

Hello, a) Please provide the amount of legal fees spent on the Competition Appeal Tribunal case number 1264/5/7/16 (Transport for London and Others v MasterCard Incorporated and Others) throughout the entire course of the proceedings including preparation of the litigation and its settlement, including a breakdown by law firms. b) Please identify the sum received by TfL due to the settlement of the abovementioned litigation. c) Please provide a copy of the settlement agreement signed between TfL and Mastercard. Thank you kindly.

We answered

Our Ref:          FOI-2912-1819

Thank you for your request received on 31 January 2019.

Your request has been considered in accordance with the requirements of the Freedom of Information Act 2000 (“FOIA”) and TfL’s information access policy.  I confirm that TfL holds some of the information you have requested.

TfL’s response to your request is as follows:

a) Please provide the amount of legal fees spent on the Competition Appeal Tribunal case number 1264/5/7/16 (Transport for London and Others v MasterCard Incorporated and Others) throughout the entire course of the proceedings including preparation of the litigation and its settlement, including a breakdown by law firms.

TfL does not hold this information.  The Competition Appeal Tribunal claim 1264/5/7/16 was one of three claims that were dealt with concurrently.  TfL is not able to separate the costs incurred in relation to this one claim from the total costs of the claims. The total fees for the claims to and including period 11 2018/19 are £296,348.19 excluding VAT.

b) Please identify the sum received by TfL due to the settlement of the abovementioned litigation.
c) Please provide a copy of the settlement agreement signed between TfL and Mastercard.

In accordance with FOIA, TfL is not obliged to disclose the sum received or a copy of the settlement agreement because this information is subject to statutory exemptions to the right of access to information.  In particular: disclosure would constitute an actionable breach of confidence and therefore is subject to absolute exemption under section 41 of FOIA; disclosure would also be likely to prejudice the commercial interests of TfL and Mastercard and therefore is subject to qualified exemption under section 43(2) of FOIA.

Exemption for information provided in confidence

TfL is not obliged to supply the information requested as it is subject to an exemption under section 41 of FOIA because the information was provided to us on the basis of an understanding that it would be held in confidence and therefore it possesses the necessary quality of confidence to justify exemption.  As explained below, the information would be likely to prejudice the commercial interests of TfL and Mastercard’s if it were to be released into the public domain.

This exemption is an absolute exemption, which is not subject to an assessment of whether the public interest favours application of the exemption.

Exemption for information where disclosure would be likely to prejudice the commercial interests of TfL and Mastercard
In addition, the sum received and the settlement agreement are subject to an exemption under section 43(2) of FOIA because the disclosure of this information would be likely to prejudice the commercial interests of TfL and Mastercard.

The disclosure of the details of the settlement would be likely to prejudice TfL’s commercial interests because of other ongoing claims, and disclosure would be likely to impact the level at which such claims may be resolved.  In addition, the settlement agreement deals with matters (other than claim settlement) which, if disclosed, could adversely affect TfL's ability to negotiate and tender future agreements in relation to similar matters.

The disclosure of the details of the settlement would also be likely to prejudice Mastercard’s commercial interests because it would be likely to impact the level at which other similar ongoing claims against Mastercard may be resolved.  In addition, knowledge of the terms agreed between TfL and Mastercard by Mastercard’s competitors and potential customers could adversely affect Mastercard’s ability to enter into future contracts on acceptable terms.

This exemption is a qualified exemption, the application of which is subject to an assessment of the public interest in relation to the disclosure of the information concerned.  TfL recognises the need for openness and transparency by public authorities, but in this instance the public interest in ensuring that TfL is able to obtain the best value for public money outweighs the general public interest in increasing transparency of TfL’s processes.

Please see the attached information sheet for details of your right to appeal.

Yours sincerely

Gemma Jacob
Senior FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London

[email protected]

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