On 30 October 2014, the UK (English) High Court handed down a judgment considering limitation issues in the context of a competition damages claim. This is the first time the issue has been dealt with by a UK court, and it is now the leading case on the point in the UK.
The case forms part of the UK litigation against Visa for damages arising from breaches of EU and UK competition law in relation to Visa’s multilateral interchange fees. Visa had sought strikeout/summary judgment for the part of the claimant’s actions relating to infringement of competition law more than six years (being the normal limitation period) before the date on which they brought the actions (in 2013).
Under UK law, where any fact relevant to the claimant’s right of action has been deliberately concealed from it by the defendant, the period of limitation does not begin to run until the claimant has discovered the concealment or could with reasonable diligence have discovered it.
The issue was whether the public decisions and pronouncements of the EC and UK Office of Fair Trading (OFT) before 2007 meant that the claimants knew or could with reasonable diligence have identified information sufficient to establish a prima facie case.
The judge decided that indeed various EC and OFT documents and an EC decision relating to the issues provided enough information. He did not agree that the case, being a competition damages claim, deserved special treatment. The judge did, however, distinguish true cartel cases, so the “deliberate concealment” exception is very much alive and well for damages claims relating to those.
Nevertheless, in all competition damages cases (including those relating to secret cartels), it is clear that claimants need to be aware of publicly available (or reasonably available) information, because when this comes out the limitation period could start to run.