Wm Morrison Supermarkets Plc & Ors v Mastercard Inc & Ors

For relation back under the Limitation Act 1980, an amendment alleging a concerted practice may introduce a new cause of action, distinct from an existing allegation based on a decision of an association of undertakings. A continuing-infringement claim cannot be related back for the whole period when part falls outside the limitation period merely because another part is within time. The same-facts requirement must also be satisfied. Leave may nevertheless be granted for an amendment confined to the six-year period applicable when leave is sought.

At a case management conference, the claimants sought leave to amend competition claims concerning UK default interchange fees. The existing pleading alleged breach of statutory duty based on a decision by an association of undertakings. The proposed amendment added, alternatively, concerted practices involving certain MasterCard defendants from 18 November 2004. The claim form had been issued on 23 May 2012 and leave to amend was sought on 8 October 2013. The defendants relied on limitation and argued that the amendment introduced a new cause of action that did not arise from the same or substantially the same facts. The central issues were whether the amendment could relate back to the original claim and, if not, whether it could be permitted for the period still within limitation.

Disposition. The proposed amendment could not take effect as a claim for the whole period back to 23 May 2006. Leave was granted for the new claim only to the extent that it related back six years from 8 October 2013.

1. New cause of action. Under section 35(2) of the Limitation Act 1980, the relevant question is whether there is a new cause of action, rather than merely a new aspect of an existing claim. The court applied the principles stated in Lloyds Bank PLC v Roger et [1999] 3 EGLR 83 and Letang v Cooper [1965] 1 QB 232. A cause of action is identified by the factual situation giving rise to the remedy.
2. Character of the amendment. The existing claim was founded on a decision by an association of undertakings. The proposed allegation of concerted practice constituted a different breach of statutory duty and therefore a new cause of action.
3. Limitation and relation back. Section 35(3) was construed as preventing relation back for any part of a continuing-infringement claim falling outside the applicable limitation period. The fact that some part of the infringement remained within time did not permit the entire period to be related back. The court treated the progressive-expiry discussion in Hoechst UK Limited v IRC [2003] EWHC 1002 as an assumption rather than a decision, and it did not support the claimants’ submission.
4. Same facts. The condition in section 35(5)(a) was not met. Concerted action was materially different in nature from a decision taken by an association of undertakings. Welsh Development Agency v Redpath Dorman Long Limited [1994] 1 WLR 1409 was distinguished because it did not concern a continuing infringement.
5. Case-management order. The defendants accepted that an amendment limited to the applicable six-year period could be made. The court considered that approach sensible, avoiding the unnecessary costs of issuing and consolidating a separate claim, and granted leave on that limited basis.

This was a first-instance case management decision. The judgment records that the claims were founded on a European Commission decision and refers to an OFT decision that had been set aside on appeal on procedural grounds. No appellate history for this application is stated.