Arcadia Group Brands Ltd & Ors v Visa Inc & Ors

For the purposes of limitation, a concealed fact is relevant to a claimant’s right of action only if it is essential to plead a complete prima facie cause of action. Facts which merely strengthen the claim, assist proof, affect quantum or defeat a possible defence do not postpone time under section 32(1)(b) of the Limitation Act 1980.

Competition claims are not subject to a special limitation test. Although their complexity and secrecy may justify a generous approach to pleading, a claimant must sue within the primary limitation period once it has sufficient facts to plead the claim. Summary determination is appropriate where the material facts are established and further disclosure cannot affect the limitation issue.

The claimants, major retailers, sought damages from Visa entities for alleged breaches of European and domestic competition law arising from multilateral interchange fees imposed in the Visa payment-card system. They claimed losses dating back to 1977.

The defendants applied under CPR Part 3.4 and Part 24 to strike out or obtain summary judgment on claims arising before the applicable six-year limitation dates. The claimants relied on deliberate concealment under section 32(1)(b) of the Limitation Act 1980, alleging that the structure, operation, responsibility for and levels of the fees had remained concealed. They also relied on the prospective EU damages directive.

The central issue was whether the claimants lacked facts essential to pleading a prima facie cause of action before the limitation dates.

1. Applications granted. The defendants obtained the relief sought. Claims relating to periods before the applicable limitation dates were time-barred and were struck out or summarily determined accordingly.
2. Section 32(1)(b) of the Limitation Act 1980 is construed narrowly. It concerns facts which found the cause of action and which are essential to pleading a complete prima facie case. The relevant inquiry is the “statement of claim” test. Facts which improve the prospects of success, provide additional evidence, assist in defeating a defence or affect the assessment of damages do not postpone limitation.
3. The claimants’ competition claims required an agreement or concerted practice, an appreciable and objectively unnecessary restriction of competition, the relevant effect on trade, and loss or damage. The pleaded case already alleged those elements. The fact that the full evidential picture was unavailable did not make the causes of action incomplete.
4. The four alleged concealed matters—the manner and mechanisms by which the fees were set, their precise nature and scope, the identity and responsibility of the defendants, and the actual fee levels—were not essential facts. The first two concerned detail rather than the core object and effect of the alleged restriction. The defendants’ identities could have been investigated with reasonable diligence. The actual levels were relevant to quantum, but the pleaded case treated any fee above zero as the alleged overcharge.
5. The public decisions and materials available before the limitation dates disclosed the existence and basic nature of the fees, their alleged competition-law significance, the relevant Visa entities, their potential effect on merchant charges and the possible loss. The generous approach to pleading in competition cases did not suspend limitation while claimants awaited commercially reassuring evidence.
6. The later directive could not be relied on retrospectively. Its temporal provisions excluded reliance on its limitation rules in actions already before a national court when the directive entered into force.
7. The issue was suitable for summary disposal. Further disclosure or evidence could not alter whether the claimants possessed, or could reasonably have discovered, facts sufficient to plead their causes of action before the limitation dates.