Visa wins strike out/summary judgment on limitation issues

30 Oct 2014 | by Caroline Sweeney

The Commercial Court granted Visa summary judgment in the interchange fees litigation, striking out over 30 years of potential damages sought by a group of 12 retailers, totalling over £500m.

Twelve claimants, including high street retailers such as Asda, Argos, B&Q, Next and House of Fraser sought damages, dating back to 1977, for alleged breaches of competition law arising from Visa’s setting and imposition of multilateral interchange fees (“MIF”) in the EEA, UK and Ireland. The normal statutory limitation period is six years. The Claimants sought to rely on s.32(1)(b) of the Limitation Act to extend their claim beyond six years on the basis that Visa had deliberately concealed facts that were material to their cause of action which had prevented them from issuing their claims earlier.

In a judgment handed down today in Arcadia Group Brands Limited and ors v Visa Inc and ors [2014] EWHC 3561 (Comm)Mr Justice Simon held that there was a narrow issue which could be determined on a summary basis without the need for a full trial – namely whether there were sufficient facts known to the claimants, or reasonably discoverable by them before 2007, which were sufficient for them to plead a statement of case establishing a prima facie case. He gave a detailed summary of the chronology of publically available documents, in the form of notices, press releases and decisions published by the OFT and EU Commission from 1992 onwards as part of their investigations into interchange pursuant to Article 101 TFEU and the Chapter I prohibition. He held that Visa was able to demonstrate the Particulars of Claim could have been derived from material available before 2007.

The Claimants sought to rely on four “key facts” which they argued were essential for it to commence proceedings, namely (i) the manner and mechanisms by which the MIFs were set, the nature and scope of the Visa MIF arrangements, (iii) the identity of the Visa entities involved in setting the MIFs and (iv) the actual levels of the MIFs. Mr. Justice Simon dismissed those arguments, holding that such facts (although useful in providing commercial reassurance in commencing litigation) were either not material to pleading a cause of action and/or , in any event, could have been discoverable by sophisticated retailers and their advisors from the publically available materials or via appropriate use of the CPR procedures.

Importantly, the judge commented that the trigger for the running of time for limitation purposes is not the discovery of every potentially relevant fact in the broadest sense but merely those which are sufficient for a cause of action to be pleaded and which cannot be struck out for want of some essential averment.

The case has important ramifications for limitation periods, which may well now be triggered by commitment decisions and settlement decisions if sufficient facts are set out in the body of the Decision.

Anneli Howard  (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims and who took the lead role in the Applications