Gemalto Holding BV & Ors. v Infineon Technologies AG & Ors.

For Limitation Act 1980 section 32(1)(b), deliberate concealment postpones time only until the claimant knows, or could reasonably know, that it has a worthwhile claim. In a concealed cartel case, that occurs when a reasonable person could reasonably believe that a cartel existed and identify its participants. The claimant need not know with certainty that the claim will succeed, nor possess every detail of the cartel, before time begins to run.

A public announcement that a regulator has issued a statement of objections, assessed with other information available to the claimant, may provide that reasonable belief. Whether it does so remains fact-sensitive. Knowledge of a broadly pleaded period of infringement may suffice; precise dates are not required if a properly pleaded claim would not be struck out.

Gemalto brought a follow-on damages claim arising from a smart card chips cartel involving Infineon and Renesas. It issued proceedings on 19 July 2019, relying on the European Commission’s infringement decision of 3 September 2014.

The High Court held that the claim was statute-barred. It found that Gemalto had sufficient knowledge by the end of April 2013, when the Commission publicly announced that it had issued a statement of objections and Gemalto knew that Infineon and Renesas were addressees. Earlier requests for information identified 2003 to 2006 as the relevant period.

On appeal, the central issue was when Gemalto discovered, or could with reasonable diligence have discovered, the deliberately concealed facts for the purposes of Limitation Act 1980 section 32(1)(b).

1. Appeal dismissed. The judge was right to hold that Gemalto’s claim was time-barred. The applicable approach was that stated by the Supreme Court in Test Claimants in the Franked Investment Group Litigation v HMRC [2020] UKSC 47.

2. The proviso to Limitation Act 1980 section 32(1) must be construed consistently in cases of mistake and deliberate concealment. In a concealment case, time begins when the claimant recognises that it has a worthwhile claim. In a cartel claim, that means that a reasonable person could reasonably believe that there had been a cartel and know the participants. The claimant need not have certainty, complete particulars, or knowledge of every essential detail. It need only have enough to justify beginning the preliminaries to proceedings. A claim which would be struck out would not be worthwhile.

3. The Commission’s public announcement of a statement of objections, after an in-depth investigation, was capable of supporting an objectively reasonable belief in a cartel. It was not reduced to mere speculation because the statement was provisional or because the defendants denied liability. On the facts, that announcement, the press confirmation of the defendants’ identities, and Gemalto’s earlier knowledge supplied sufficient information.

4. The requests for information allowed Gemalto to plead a cartel operating in or around 2003 to 2006. The precise duration was not required at that stage. Gemalto therefore had sufficient knowledge by the end of April 2013, more than six years before proceedings began.

Green LJ agreed, observing that the assessment is fact- and context-sensitive, including as to the claimant’s resources and ability to understand the significance of a statement of objections. Birss LJ also agreed.

• Court of Appeal (Civil Division): Dismissed Gemalto’s appeal in [2022] EWCA Civ 782, upholding the conclusion that the claim was statute-barred.
• High Court, Competition List (Chancery Division): Mrs Justice Bacon held that the limitation period under Limitation Act 1980 section 32(1)(b) began no later than the end of April 2013. The citation of that judgment is not stated in the judgment.