The Payment Systems Regulator (PSR) welcomes the High Court’s full dismissal of NoteMachine’s legal challenge.
The judicial review was brought by the ATM operator and heard at the High Court on 16 and 17 March 2022.
The background to the challenge related to concerns NoteMachine had about the amount of money it received for providing customers with access to ATM services (including cash withdrawals) via the LINK system. NoteMachine asked the PSR to intervene and raise the LINK interchange rate paid to NoteMachine, but the PSR decided it was not appropriate to do so.
In declining to intervene the PSR considered how its legal powers were engaged, and made an assessment of what was appropriate, ultimately deciding against taking action.
NoteMachine challenged this and launched a judicial review, citing four grounds in the hearing at the High Court last year, having been refused permission to pursue a fifth earlier in proceedings.
All of the grounds were dismissed in today’s decision.
Chris Hemsley, the PSR’s Managing Director, commented:
“We welcome the High Court’s decision, and the confirmation it provides that the PSR acted appropriately.
“We take our decision-making responsibilities very seriously, both in terms of when to intervene to create change and, in this case, when it is not appropriate to do so.
“The approach we took in this scenario was the right one. As a regulator we know that we have a duty to provide good outcomes for all users of payment systems, and we must do so in a proportionate and balanced way. Today’s decision is important because it makes clear that the PSR correctly applied its legal powers.”
The final judgment can be found at this website.
- NoteMachine’s grounds for the judicial review:
- Misapplication of statutory provisions in that the PSR failed to apply s.108 of Financial Services (Banking Reform) Act 2013 (FSBRA) correctly in concluding that s. 108 precluded the PSR from dealing with NoteMachine’s application under its access powers in s.57 FSBRA (and instead determining that r. 103 of the Payment Services Regulations 2017 (PSRs 2017) was the relevant regime to consider).
- Error of Law in the interpretation of the term “Discrimination” in that when considering r. 103 PSRs 2017, the PSR failed to define and apply the concept of “discrimination” correctly as required by r.103(3)(b) PSRs 2017.
- When deciding not to take further action in relation to the issues which NoteMachine raised concerning the Competition Act 1998 (CA98), the PSR erred in its approach to the primacy duty under s.62 FSBRA (which requires the PSR to consider whether it would be more appropriate to proceed under CA98 than using certain FSBRA powers).
- In a letter of 12 March 2021, when deciding not to take further action on administrative prioritisation grounds in relation to the issues which NoteMachine raised concerning CA98, the PSR erred in fact and in law by failing to appreciate that CA98 applies equally to Multilateral Interchange Fees which are set too low.
- Kassie Smith KC and Imogen Proud, both of Monckton Chambers, acted for the Payment Systems Regulator, instructed by Kingsley Napley.
- More information about how the PSR regulates.