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

Filing a compliant claim form in the Competition Appeal Tribunal makes and commences a follow-on claim there for the purposes of the Tribunal’s limitation rules. This remains so where earlier stand-alone High Court proceedings have been transferred and not formally abandoned. A transfer under section 16 of the Enterprise Act 2002 does not preserve High Court limitation rules or empower the High Court to bind the Tribunal’s procedure. The limitation regimes under the Limitation Act 1980 and the Tribunal Rules operate in parallel. A transfer order preserving accrued rights protects rights in the existing High Court claim, but does not create a contractual estoppel against a timely Tribunal claim without clear wording. Limitation is assessed by reference to individual claims and causes of action, so a claim against a defendant never sued in the High Court may be separately in time.

The NHS claimants sought more than £500 million in follow-on damages arising from unlawful agreements concerning citalopram. They had issued a stand-alone damages claim in the High Court in 2019. After the European Commission decision became final, the proceedings were transferred to the Competition Appeal Tribunal under section 16 of the Enterprise Act 2002.

The claimants then filed a claim form under section 47A of the Competition Act 1998 within the two-year period preserved by Rule 119 of the Competition Appeal Tribunal Rules 2015 and Rule 31 of the 2003 Rules. The Tribunal rejected the defendants’ limitation and contractual-estoppel defences in [2024] CAT 42. The appeal concerned whether the claim remained a time-barred High Court claim and whether the transfer order preserved that defence. A separate issue concerned a defendant added only in the Tribunal proceedings.

The appeals were dismissed unanimously. Lord Justice Green gave the leading judgment, with the Chancellor of the High Court and Lord Justice Phillips agreeing.

1. Under Rule 30 of the Competition Appeal Tribunal Rules 2015, a claim under section 47A of the Competition Act 1998 is made by filing a claim form. Once a compliant form is filed in the Tribunal, the claim is made and commenced there. The fact that the proceedings followed a transfer from the High Court, and that the earlier proceedings had not been abandoned, did not invalidate the claim or disapply Rule 119 and Rule 31. The defendants’ argument depended on extraneous procedural history and elevated form over substance: paras [59]–[62].
2. Section 16 of the Enterprise Act 2002 does not empower the High Court to impose binding directions on the Tribunal or to alter or waive the Tribunal Rules. Once transferred, proceedings are thereafter Tribunal proceedings governed by its rules. The transfer mechanism could not extinguish an otherwise valid claim: paras [24]–[27], [62], [66] and [71].
3. The stand-alone limitation regime under the Limitation Act 1980 and the follow-on regime under Rule 119 are parallel regimes addressing different situations. The latter was an enactment falling within section 39 of the Limitation Act 1980. A procedural transfer did not cause the High Court limitation bar to displace the applicable Tribunal period: para [63]. The reasoning in Sainsbury’s Supermarkets Ltd v Mastercard Inc was confined to the preservation of an otherwise valid claim and did not require a different conclusion where a Tribunal claim form was filed within time: paras [64]–[70].
4. The transfer order did not create a contractual estoppel. Its reference to accrued rights concerned rights in the existing High Court stand-alone claim. It did not waive the claimants’ prospective right to bring a timely follow-on claim in the Tribunal. Particularly clear wording would have been required to surrender that valuable right, and no such wording existed: paras [73]–[80].
5. Limitation was analysed by reference to individual claims and causes of action. The claim against the twelfth defendant, who had not been sued in the High Court, was a separate Tribunal claim. Section 35 of the Limitation Act 1980 did not relate it back to the High Court proceedings: paras [81]–[86].

The court also stated in a postscript that procedural irregularities do not automatically render Tribunal proceedings void and may be cured or waived under Rule 114: para [71].

• Court of Appeal (Civil Division): In [2025] EWCA Civ 677, the appeals were dismissed. The court held that the Tribunal claim was validly made within the applicable follow-on limitation period and was not barred by contractual estoppel.
• Competition Appeal Tribunal: In [2024] CAT 42, the Tribunal dismissed the defendants’ preliminary limitation and contractual-estoppel defences and granted permission to appeal.