Judgment of the Tribunal in relation to a limitation defence raised by the Defendants (together, “Mastercard”).
The class on behalf of which the proceedings are brought comprises all individuals who, between 22 May 1992 and 21 June 2010, when aged 16 and above and resident in the UK, purchased goods and/or services from businesses selling in the UK that accepted Mastercard cards.
Mastercard alleged that insofar as the claims are governed by English law, claims related to infringements occurring before 20 June 1997 are time barred. That contention was based on a combination of the original s. 47A Competition Act 1998 (“CA 1998”), which came into effect on 20 June 2003, rule 31(4) of the Competition Appeal Tribunal Rules 2003 (“CAT Rules 2003”) and s. 2 Limitation Act 1980 (“LA 1980”). Rule 31(4) of the CAT Rules 2003 provided that no claim for damages may be made if the claimant would have been prevented from bringing the proceedings by a period of limitation having expired before 20 June 2003. For claims that were not so time barred, s. 47A CA 1998 introduced a new limitation period which, where the claim was based on a European Commission decision, was two years from the time when appeals from that decision were finally determined or the time for bringing an appeal expired.
The claim form in the present proceedings was issued on 6 September 2016, which is just under two years from the date of the CJEU judgment dismissing Mastercard’s appeal, i.e. 11 September 2014: Case C-382/12P Mastercard v Commission, EU:C:2014:2201.
Claims in respect of loss suffered before 20 June 1997 would have been time barred on 20 June 2003, when the original s. 47A CA 1998 came into force, pursuant to the primary limitation period of six years under s. 2 or s. 9 LA 1980.
Mr Merricks, the Class Representative (“CR”), contended that the operation of the primary six year limitation period was suspended pursuant to s. 32(1)(b) or alternatively s. 32(2) of LA 1980. Alternatively, the CR relied on the EU principle of effectiveness. Aside from the cessation requirement as set out in Case C-267/20 Volvo AB and DAF Trucks NV v RM, EU:C:2022:494, the CR contended that this principle means that no limitation period could begin to run before the class members knew or could reasonably be expected to know (a) the existence of the infringement, (b) the existence of the harm they suffered, (c) the causal link between that harm and the infringement, and (d) the identity of the perpetrators of the infringement.
The Tribunal decided that:
1. there was no deliberate concealment of relevant facts for the purpose of s. 32(1)(b) LA 1980;
2. there was no deliberate breach of duty for the purpose of s. 32(2) LA; and
3. the application of the limitation rules under English law is not precluded or modified by the EU principle of effectiveness.
