UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Rules on limitation differ depending on whether the claim is brought before the High Court or CAT and when the cause of action accrues (ie, when the infringement causes damage to the claimant). New limitation rules apply to claims (whether brought in the High Court or CAT) where the loss or damage took place wholly on or after 9 March 2017 (paragraphs 17–26, Schedule 8A, CA 1998). These new limitation rules displace the Limitation Act 1980 in relation to antitrust claims. Claims Where Loss or Damage Occurred Before 9 March 2017 For High Court claims where the loss or damage occurred wholly before 9 March 2017, the limitation period is six years from the date on which a cause of action accrues. The High Court in Gemalto Holding and Thales DIS France v Infineon Technologies and ors [2022] EWHC 156 clarified that the six years starts to run when the claimant’s state of knowledge is such that it and its professional advisers can properly plead a claim that would not be liable to be struck out as unarguable or lacking sufficient evidential basis. The limitation period is not postponed until the claimant has completed its investigations or is certain that the claim will succeed. Mere suspicion will not, however, be enough, particularly if it is vague and unsupported. Rather, the standard is one of “reasonable belief” of the facts giving rise to the relevant cause of action. Where there is deliberate concealment (or fraud), the six-year period will not begin to run until such time as the claimant either discovered the concealment or ought reasonably to have discovered it. There must either be active and intentional concealment of a fact relevant to a cause of action, or at least intentional concealment by omission of a fact which the defend - ant knew they were under a duty to disclose. A fact relevant to the claimant’s cause of action refers to a fact without which the cause of action would be incomplete. It is not relevant that a defendant has con - cealed a fact which, if known, would merely strengthen a claimant’s case. Follow-on claims which are issued more than six years after the date of the underlying
infringement decision (and depending on the context, the statement of objections preceding that decision – see Gemalto Holding and Thales DIS France v Infineon Technologies and ors [2022] EWHC 156) may be time- barred. However, defendants often argue that claim - ants either discovered or ought to have discovered any concealment earlier than the publication of the infringement decision, for instance, from the date of a press release relating to dawn raids or a statement of objections. Claims Where Loss or Damage Occurred On or After 9 March 2017 Where the loss or damage occurred wholly on or after 9 March 2017, proceedings may not be brought before a court or tribunal after the end of a six-year limitation period. The limitation period begins on whichever is later – the day on which the infringement ceases, or the claimant’s “day of knowledge”. The latter is the day on which the claimant first knew, or could reason - ably be expected to have known: • the identity of the infringer; • about the existence of the infringer’s behaviour; • that the behaviour infringed competition law; and • that the claimant itself had suffered loss or damage due to the infringement (paragraphs 17–26, Sched - ule 8A, CA 1998). This period may also be suspended in various cir - cumstances, including during an investigation by a competition authority or during a consensual dispute resolution process. 3.2 Typical Length of Private Antitrust Litigation The typical timetable for an antitrust damages claim is around three to five years depending on a variety of factors, including the extent of disclosure, the number of witnesses and experts, whether the court or tribunal orders a stay, and whether applications are made for strikeout/summary judgment or for the determination of preliminary issues. The status of related cases may also give rise to delays or applications for stays (eg, David Courtney Boyle & Edward John Vermeer v Govia Thameslink
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