The Secretary of State for Health and Social Care & Ors v Lundbeck Limited & Ors

The Court of Appeal dismissed the defendants' appeal. The court held that where proceedings transferred from the High Court to the Competition Appeal Tribunal are followed by the claimant filing a Claim Form under Rule 30 of the Competition Appeal Tribunal Rules 2015 (applying the saved Rule 31 of the 2003 Rules by Rule 119), that filing constitutes a claim "made" in the Tribunal for the purposes of the Tribunal's limitation regime. The Tribunal Rules are self-contained and forward-looking; a transfer under section 16 of the Enterprise Act 2002 does not mean that transferred proceedings continue to be governed, for limitation purposes, by the Limitation Act 1980 unless clearly specified. The court also rejected the contractual estoppel argument based on the Transfer Order: the Transfer Order did not, in clear language, cause the claimants to give up any prospective right to bring an in-time follow-on claim in the CAT. The court further held that the claim against the 12th defendant, who was added only after transfer and had not been a party in the High Court, is a separate and valid follow-on claim made in time.

This is an appeal from the Competition Appeal Tribunal's decision that a follow-on damages claim based on the European Commission's Lundbeck decision was validly brought in the Tribunal and not time-barred. The underlying Commission Decision (Case AT.39226 Lundbeck, 19 June 2013) found unlawful reverse-payment agreements that delayed generic entry. The Claimants (NHS bodies) issued stand-alone proceedings in the High Court in June 2019 but agreed a transfer to the CAT after the Commission decision became final on 25 March 2021. The High Court made a Transfer Order (2 July 2021) under section 16 Enterprise Act 2002 and the claimants thereafter filed a Claim Form in the CAT under Rule 30 within the two-year period preserved by Rule 119 and the saved Rule 31 (2003 Rules).

The defendants relied on Gemalto (EWCA Civ 782) to show the original stand-alone High Court action was time-barred under the Limitation Act 1980 and argued that the Transfer Order meant the transferred proceedings remained subject to the Limitation Act 1980. They also argued that the Transfer Order contained an express agreement preserving the defendants' accrued limitation rights and thus estopped the claimants from asserting that the CAT filing put the claim within the Tribunal's two-year follow-on limit.

The issues framed by the court were:

• Whether the claim was "made" in the CAT for limitation purposes by filing a Claim Form under Rule 30 (and thus within the two-year period preserved by Rule 119 / Rule 31(2003)), or whether it remained a continuation of the High Court stand-alone proceedings governed by the Limitation Act 1980.
• Whether the Transfer Order operated as a contractual estoppel by which the claimants had surrendered any right to bring a timely follow-on claim in the CAT.

The Court of Appeal upheld the CAT's interpretation. It applied ordinary and contextual statutory interpretation to the Rules, emphasising that Rule 30 expressly provides that a section 47A claim "shall be made by filing a claim form". The Rules are a self-contained procedural code for proceedings "in" the CAT and should not be defeated by extraneous understandings of the parties or by prior procedural history in another court. The court relied on the governing principles in Rule 4 (fairness, proportionality and active case management), Rule 72 on transfers and Rule 114 on curing irregularities to support that transferred proceedings become CAT proceedings subject to its Rules. The court distinguished Sainsbury's (EWHC 3472 (Ch)) and concluded that that decision did not compel a different result. On estoppel, the court held that the Transfer Order’s reference to preserving "accrued rights" related to rights accrued in the High Court as constituted there and did not amount to a clear contractual waiver of the claimants’ ability to bring an in-time follow-on claim under the Tribunal Rules. The court also held that the claim added against the 12th defendant after transfer is a separate claim in the CAT and was validly made in time.

Appeal dismissed. The court held that the Claim Form filed in the Competition Appeal Tribunal under Rule 30 constituted a claim "made" in the Tribunal for limitation purposes (so the two-year follow-on period in Rule 119 / saved Rule 31 applied). The Transfer Order and prior High Court history did not prevent the Tribunal regime applying, and the Transfer Order did not operate as a contractual estoppel preventing the claimants from relying on the Tribunal's limitation rules. The claim against the 12th defendant, who was added only after transfer, is a separate and timely follow-on claim.

Appeal from judgment of the Competition Appeal Tribunal [2024] CAT 42 (judgment dated 21 June 2024). Underlying European Commission Decision Case AT.39226 Lundbeck (19 June 2013); appeals to the General Court dismissed 8 September 2016 and to the Court of Justice (Case C-591/16P Lundbeck v Commission ECLI:EU:C:2021:243) dismissed 25 March 2021. High Court proceedings were issued 19 June 2019, transferred by consent order to the CAT on 2 July 2021. This Court gave judgment in the appeal as [2025] EWCA Civ 677 on 23 May 2025.