Granville Technology Group Ltd & Ors v Infineon Technologies AG & Anor

For Limitation Act 1980 s 32(1)(b), a concealed fact must be essential to pleading a viable cause of action. Facts which merely strengthen the claim, provide evidence or defeat a defence do not qualify. A claimant discovers the fact when it has sufficient material to plead the claim without strike-out, subject to professional obligations and a proper Statement of Truth.

Reasonable diligence requires an objective trigger putting the claimant on notice of something requiring investigation, followed by reasonable investigative steps. Secret-cartel claims receive a measure of generosity in pleading, but limitation is not postponed until full disclosure or a regulatory decision. Administration does not erase prior corporate knowledge, and a company is not artificially treated as still trading when considering whether a trigger existed.

Three companies involved in assembling and selling computers claimed damages or restitution from a DRAM price-fixing cartel. The cartel had been the subject of European Commission Decision COMP/38511. Infineon Technologies AG and Micron Europe Limited contended that the claims were barred by the six-year periods under Limitation Act 1980 ss 2 and 9.

The claimants relied on the deliberate-concealment postponement in s 32(1)(b). The court tried preliminary issues concerning whether each claimant’s claims against each defendant was time-barred, including whether the claimants had sufficient material to plead viable competition claims and whether reasonable diligence could have revealed the relevant facts.

The court determined the preliminary limitation issues as follows.

1. Statutory test. Under Limitation Act 1980 s 32(1)(b), the concealed matter must be a fact essential to complete the cause of action. It is insufficient that the matter would strengthen the claim, provide newly discovered evidence or assist in defeating a defence. For a cartel claim, the claimant needed material sufficient to plead an agreement or concerted practice, appreciable anti-competitive conduct, an effect on relevant trade, and loss or damage.
2. Discovery. A fact is discovered when the claimant has sufficient material to plead it properly. The pleading must satisfy professional obligations, have a sufficient evidential basis to avoid strike-out, and be capable of verification by a Statement of Truth. The claimant need not possess full particulars or await judicial confirmation of the facts.
3. Reasonable diligence. The enquiry first asks whether an objective event put the claimant on notice that something required investigation. Only then does it ask what reasonable investigation could have revealed. The test does not require exceptional measures. A company in administration or liquidation is not assumed still to be trading when considering whether a trigger existed, although once put on notice its ability to investigate will generally be assessed objectively. Administration does not erase corporate knowledge.
4. Granville and VMT. By March 2005, reasonable diligence could have revealed the US investigations, guilty pleas, European Commission investigation, relevant corporate filings and provisions for fines. That material was sufficient to plead a viable claim concerning implementation or qualified effects in Europe, spot-market effects, a single continuous infringement and participation by Micron Europe. The claimants could not postpone limitation until the Commission Decision supplied fuller detail.
5. OTC. OTC had ceased trading before the relevant investigations became public and had not received the US class-action invitation. The sporadic press coverage did not objectively put its administrators or liquidators on notice of a need to investigate. OTC’s claims were therefore not time-barred.
6. Disposition. The claims of the First and Second Claimants against both defendants were time-barred. The Third Claimant’s claims against both defendants were not time-barred. The court reserved consequential matters.

This was a first-instance trial of preliminary limitation issues. Jacobs J ordered the issues on 4 June 2019 under CPR rule 3.1(2)(i). Knowles J refused an adjournment application on 19 December 2019. The Commercial Court then determined the preliminary issues.