Arcadia Group Brands Ltd & Ors v Visa Inc & Ors

Under section 32(1)(b) of the Limitation Act 1980, a relevant concealed fact is one without which the cause of action is incomplete. Facts which merely strengthen the claim or bear on a defence do not postpone limitation. This statement of claim test applies equally to competition claims. A claimant need not disprove an exemption under Article 101(3), which the defendant must establish.

A six-year limitation period, subject to postponement for deliberate concealment, is compatible with EU principles of effectiveness and full compensation where proceedings could reasonably have been brought within time. The limitation provisions of Directive 2014/104/EU did not retrospectively govern these proceedings.

The weakness of a legal argument, without more, does not justify indemnity costs.

The appellants were twelve retailers bringing separate claims against five companies involved in operating the Visa payment card schemes. They alleged that Visa's multilateral interchange fees unlawfully restricted competition and inflated the merchant service charges paid to their acquiring banks. They sought damages and restitution for periods extending back to 1977.

Simon J granted the defendants summary judgment on limitation and ordered consequential striking out or amendment of the pleadings. He held that sufficient facts to plead the claims were publicly available before the dates falling six years before issue. He also awarded indemnity costs. The retailers appealed, relying on deliberate concealment, EU principles and the limitation provisions of Directive 2014/104/EU. The central questions were whether further concealed information postponed limitation and whether indemnity costs were justified.

1. The appeal was dismissed on limitation and allowed on the basis of assessment of costs. The Chancellor's reasoning was agreed by Richards and Patten LJJ. The summary judgment and consequential striking out or amendment of the pleadings were upheld (paras 85–88).

2. Section 32(1)(b) of the Limitation Act 1980 concerns facts without which a cause of action is incomplete. It excludes facts which merely improve prospects of success and facts bearing on a defence rather than a necessary ingredient of the claim. The statement of claim test established in Johnson v Chief Constable of Surrey, C v Mirror Group Newspapers Ltd and AIC Ltd v ITS Testing Services (UK) Ltd, The ‘Kriti Palm’ governed competition claims as it governed other claims. Their economic complexity did not justify a different test (paras 49–52).

3. The pleaded allegations sufficiently identified the restriction of competition and resulting loss. Further information about the mechanisms for fixing interchange fees concerned the strength of the claims and the commercial merits of litigation. An exemption under Article 101(3) was for the defendants to plead and prove; its disproof was no ingredient of the retailers' causes of action (paras 53–59).

4. The retailers had pleaded complete causes of action, verified by statements of truth, and accepted that no new facts necessary to complete them had emerged during the preceding six years. Their contention that limitation had still not begun was inconsistent with that position. The tentative obiter discussion in Williams v Lishman, Sidwell, Campbell & Price Ltd did not justify replacing the established test with an inquiry into facts causally explaining a decision to litigate (paras 62–71).

5. Reasonable limitation periods accord with EU legal certainty, although they may restrict full compensation. Proceedings could have been brought before the relevant limitation dates. The six-year period, with statutory postponement for concealment, infringed neither effectiveness nor full compensation in these circumstances. Article 10(2) of Directive 2014/104/EU introduced new law; Article 22 prevented retrospective reliance on its implementing legislation. No preliminary reference was required (paras 74–79).

6. The alternative argument that time began only with the Commission's 2007 MasterCard decision was refused. It arose too late, contradicted the maintained concession, lay outside the pleaded case and required investigation of previously available material (para 80).

7. A weak legal argument alone did not justify indemnity costs. No culpable motive, improper purpose or abuse accompanied the limitation arguments, and rejection of the defendants' offer added nothing in those circumstances. The order was varied to provide for assessment of the defendants' application costs on the standard basis (paras 83–86).

• Court of Appeal (Civil Division): In [2015] EWCA Civ 883 , dismissed the appeal against summary judgment on limitation and the consequential pleading orders. Allowed the costs appeal and substituted assessment on the standard basis.
• High Court, Queen's Bench Division, Commercial Court: Simon J delivered judgment on 20 October 2014. By an order dated 11 November 2014, he dismissed claims relating to periods more than six years before issue, ordered consequential striking out or amendment, and awarded the defendants indemnity costs.