Arcadia Group Brands Ltd & Ors v Visa Inc & Ors

For section 32(1)(b) of the Limitation Act 1980, a concealed fact postpones limitation only if the claimant must prove it to complete a prima facie cause of action. Facts which merely strengthen the claim, assist a commercial decision to litigate, quantify loss more precisely, or weaken a possible defence do not suffice.

This test applies to competition-law claims as to other claims. A reasonable limitation period, including that rule, is compatible with EU effectiveness and full-compensation principles. The weakness of a legal case alone does not justify indemnity costs; an indemnity basis requires something more, such as improper motivation or abuse.

The appellants were retailers claiming damages and restitution from Visa companies for alleged competition-law infringements arising from multilateral interchange fees. They alleged that the fees inflated merchant service charges.

Simon J gave summary judgment for the respondents on limitation. He held that claims for periods more than six years before issue were time-barred because the appellants could not rely on section 32(1)(b) of the Limitation Act 1980. He also ordered the appellants to pay the respondents’ costs on the indemnity basis.

The appellants challenged both rulings. The central questions were whether allegedly concealed information about the interchange-fee arrangements postponed limitation, whether EU law required a different result, and whether indemnity costs were justified.

1. Appeal allowed in part. The court dismissed the appeal against summary judgment on limitation and the consequential striking-out or amendment orders. It allowed the appeal against the indemnity-costs order and substituted assessment on the standard basis.

2. Under section 32(1)(b) of the Limitation Act 1980, a fact relevant to the claimant’s right of action is a fact without which the cause of action is incomplete. The court followed Johnson v Chief Constable of Surrey, C v Mirror Group Newspapers Ltd [1997] 1 WLR 131, and AIC Ltd v ITS Testing Services (UK) Ltd, The ‘Kriti Palm’ [2006] EWCA Civ 1601. Information which merely improves prospects of success, strengthens the evidence, or concerns a defence does not postpone time.

3. Competition claims receive no special modification of that test. The particulars of claim pleaded all necessary ingredients of the asserted infringements and loss. Information about the detailed setting of the fees therefore went only to evidential strength and litigation choices. An exemption under Article 101(3) TFEU was a matter for the respondents to plead and prove, not an ingredient of the appellants’ causes of action. The claims for periods before the limitation dates were consequently statute-barred.

4. The EU principles of effectiveness and full compensation did not alter that conclusion. A six-year limitation period with the statutory postponement rule did not make recovery practically impossible or excessively difficult. Article 10(2) of Directive 2014/104/EU was new law and, under Article 22, could not assist actions begun before 26 December 2014.

5. The court refused to entertain a late new argument that time began only with the 2007 MasterCard decision. It was unpleaded, inconsistent with the appellants’ concession, and would have required further factual investigation.

6. The judge erred in ordering indemnity costs. A plainly weak legal argument does not, without more, justify the penal character of indemnity assessment. There was no culpable motive, improper purpose, or abuse.

• Court of Appeal (Civil Division): Allowed the appeal only as to the basis of assessment of the respondents’ costs. The limitation ruling and consequential orders were upheld.
• Commercial Court: Simon J granted summary judgment that the pre-limitation-date claims were time-barred and ordered the appellants to pay the respondents’ costs on the indemnity basis.