UK Retailers Seek Permission To Appeal Decision In Case Concerning Limitation Periods In Private Damages Actions

Following a decision issued on 30 October 2014, the Commercial Court of England and Wales ("CC") has denied a request made on behalf of a number of UK retailers (Arcadia, Asda, B&Q, Comet, Debenhams, House of Fraser, Iceland Foods, New Look Retailers, Next Retail, Record 2 Shop, WM Morrison, and Argos) to appeal against its judgment in which a period of 30 years was struck out of potential damages from their lawsuit against payment card group Visa. The retailers are now seeking permission to appeal directly from the Court of Appeal ("CoA"). The appeal hinges on the issue of when limitation periods start running once the relevant facts are available to the claimant(s) to pursue a damages claim following a competition law infringement. In this case, the claimants argued that they did not have access to all the relevant information, i.e., specific knowledge of Visa's conduct, needed in order to "trigger" the running of the limitation clock. The decision of the CoA as to whether or not to grant leave to appeal will have serious implications for future damages claims in the UK, particularly in light of the recent adoption of the EU Directive on Antitrust Damages Actions (the "EU Directive" - See VBB on Competition Law, Volume 2014, No. 11, available at www.vbb.com).

The UK retailers first brought their claims against Visa in a lawsuit filed in London with proceedings commencing on 23 July 2013. All well-known high-street brands, the retailers were claiming damages from Visa for its alleged excessive multilateral interchange fees ("MIFs") imposed on merchants in the UK, EEA and Ireland. MIFs are fees which merchants are subject to for every transaction carried out by a customer using a payment card. The fees are charged by the cardholder's bank to the merchant's bank per transaction and the fees are set throughmultilateral agreements between member banks. However, in the case of payment schemes involving Visa, in the absence of a multilateral agreement between banks, the charge defaults to fees set by Visa. It was this issue upon which the retailers claimed that the MIFs amounted to a breach of competition law under Article 101 of the Treaty on the Functioning of the European Union (TFEU), s. 2 of the Competition Act 1998 and/or s. 4 of the Irish Competition Act 2002. Furthermore, the claims against Visa covered a period of 37 years, taking account of all payments made under these types of agreements since 1977.

In fact, the payment card market...