How long can limitation be delayed? The UK Court of Appeal on deliberate concealment and cartel damages claims

Following our previous article on January’s judgment of the UK High Court (available here), the Court of Appeal has upheld the first instance ruling, in our client Infineon’s favour, confirming that the limitation period to bring a cartel damages claim can, in some circumstances, start to run prior to a formal finding of infringement by a competition authority. The result is a resounding success for Infineon and for our London antitrust litigation team, which represented Infineon in the appeal.

This blog summarises the judgment and its implications. You can read this briefing for a more complete picture.

Summary

The UK Court of Appeal has handed down an important judgment dismissing claimant Gemalto’s appeal against the ruling that its follow-on claim for competition damages (valued at nearly €500m) was time-barred.

In a unanimous judgment, the Court of Appeal upheld the decision of the High Court that Gemalto (now part of the Thales group) brought its claim more than six years after the limitation period began to run under the specific limitation rules postponing time in cases of deliberate concealment. Accordingly, Gemalto’s claim against the smart card chip manufacturers Infineon and Renesas, which alleged concealment of relevant evidence, remains time barred.

The judgment is relevant to any claim where a limitation period is alleged to have been extended due to deliberate concealment on the part of a defendant under the Limitation Act and is of particular importance to any companies facing actual or threatened damages claims following on from decisions by competition authorities.

Application to other cartel damage claims alleging deliberate concealment

Applying the so-called ‘FII Test’, (set out by the Supreme Court in Test Claimants in the Franked Investment Group Litigation v HMRC [2020] UKSC 47), the judgment has confirmed, if it was in doubt, that parties should not assume that time only starts to run in follow-on cartel damages claims once a regulator reaches a final finding of an infringement.

Instead, parties should carefully consider the circumstances of their specific case to determine when the claimant could reasonably have recognised that it had a worthwhile claim and could start the process of issuing that claim. This emphatically does not require that claimants know “chapter and verse”.

In competition claims, the announcement of a Statement of Objections or equivalent document by any competent regulator will be a major event in any such analysis and could – particularly if that announcement contains information on the parties, time period, and relevant product market – trigger the running of a limitation period. Other triggers might include the bringing of other claims, whether in the UK or elsewhere, in relation to the conduct.

The nature of the claimant and its resource, including access to legal advice, is also relevant context in the analysis. Consumer claimants and corporate litigants may be in very different positions.

You can read more in the full briefing here.