The Federal Deposit Insurance Corporation v Barclays Bank Plc & Ors

For limitation purposes, a fact is relevant to a claimant’s right of action only if the cause of action is incomplete without it. Evidence which merely strengthens the case, or facts relating to a possible defence, do not ordinarily postpone time under section 32(1)(b) of the Limitation Act 1980.

On a summary judgment application, the defendant bears the burden of showing that reliance on deliberate concealment has no realistic prospect of success. In a secret competition case, the court must assess whether the material publicly available before the critical date provided a solid foundation for pleading the alleged agreement or concerted practice. Later regulatory findings may constitute materially different evidence and cannot be discounted through hindsight.

The claimant, an American deposit-insurance agency acting as receiver for failed banks, brought competition claims against banks alleging collusive suppression of USD LIBOR through artificially low submissions. UBS applied to strike out the claim or obtain summary judgment on limitation grounds.

UBS argued that the six-year primary period had expired and that the claimant could, with reasonable diligence, have pleaded a complete cause of action by 10 March 2011. The claimant relied on section 32(1)(b) of the Limitation Act 1980, contending that deliberate concealment prevented time running until later regulatory findings and criminal-trial evidence disclosed the alleged misconduct.

The central issue was whether the pre-10 March 2011 material gave the claimant a sufficient basis to plead collusive Lowballing involving UBS.

1. Application dismissed. UBS failed to show that FDIC-R had no real prospect of establishing at trial that section 32(1)(b) postponed limitation. The limitation issue was left for the trial judge if UBS pursued it in its defence.
2. Under CPR r.24.2, summary judgment is appropriate only where the claimant has no real prospect of succeeding and there is no other compelling reason for trial. The burden lay on UBS.
3. The court applied the narrow “statement of claim” test under section 32(1)(b). A concealed fact must be essential to complete the cause of action. Facts which improve the prospects of success, or relate to a matter that may provide a defence, are insufficient.
4. The relevant concealed information in this case was evidence capable of providing a solid foundation for inferring an agreement or concerted practice. Although earlier commentary identified low LIBOR, clustering, incentives and possible individual misreporting, it did not provide solid support for sustained collusive Lowballing by UBS. Parallel conduct and market dysfunction remained plausible explanations.
5. The later regulatory findings concerning Barclays and UBS were materially different. They revealed widespread and systematic benchmark misconduct, collusion involving traders and submitters, and management participation or direction. It was realistic to regard those findings as the evidence which displaced the earlier assumption that innocent explanations remained more likely.
6. The court rejected hindsight reasoning. The evidential strands became public at different times, and the question was whether the pre-critical-date strands, considered cumulatively, were sufficient. The alternative case based on knowledge of other banks’ Lowballing also lacked specific pre-10 March 2011 public evidence.