UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
ings ((2026) EWCA Civ 409), holding that no principle of erring towards under-compensation exists, but that the aim is always the correct amount of compensa - tion and that – where a range applies – an award in its middle is most appropriate. A recent judgment in Trial 2 of the Merchant Inter- change Fee Umbrella Proceedings ((2026) CAT 11) saw the CAT confirm that, in order to prove a direct causal link between the overcharge and the down - stream prices, defendants are required to show that the overcharge actually fed into the claimant’s price- setting processes. The CAT also held that the prima - ry tool of that analysis should be factual, qualitative evidence about a claimant’s pricing decisions, with econometric evidence to be used as a cross-check of conclusions reached from the factual evidence. 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 limita - tion period is six years from the date the 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 runs from when the claimant’s state of knowledge allows the claimant and its advisers to plead a claim that would not be struck out as unarguable or lacking evi - dential basis. The limitation period is not postponed until investigations are complete or success is certain, but vague, unsupported suspicion is not enough –
the standard being “reasonable belief” of the relevant facts. Where there is deliberate concealment (or fraud), the six-year period does not begin to run until the claim - ant discovered – or ought reasonably to have discov - ered – the concealment. There must either be active and intentional concealment of a fact relevant to the cause of action (without which it would be incomplete) or intentional concealment by omission of a fact the defendant knew it was under a duty to disclose – con - cealing a fact that would merely strengthen a claim - ant’s case is not enough. Follow-on claims issued more than six years after the underlying infringement decision (or, depending on context, the preceding statement of objections (see Gemalto )) may be time-barred. However, defendants often argue that claimants discovered or ought to have discovered any concealment earlier – for instance, from a press release on 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 after a six-year limitation period, beginning on whichever is later: the day the infringement ceases or the claim - ant’s “day of knowledge” – the latter being the day the claimant first knew or could reasonably 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 of the CA 1998). This period may be suspended in various circum - stances, including during a competition authority investigation or a consensual dispute resolution pro - cess.
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