Time's up for limitation: deliberate concealment

Time's up for limitation: deliberate concealment

countdown2In the second of a series of three posts looking at some of the areas where limitation has been challenged, in most cases, unsuccessfully – with the unsurprising overarching conclusion that the courts will not willingly grant indulgence when it comes to limitation, we look at the case of Arcadia and deliberate concealment.

Arcadia – LA 1980, s 32 - deliberate concealment

Arcadia Group Brands v Visa Inc [2014] EWHC 3561 (Comm)

The claimants brought a claim for damages for breach of European and domestic competition law in relation to the defendants’ setting and imposition of multilateral interchange fees in the course of operating the Visa payment-card system. The claims went back to practices dating from the late 1970s onwards and therefore, all but the more recent claims were potentially time-barred. The claimants sought suspension of the limitation period under LA 1980, s 32 on the grounds that the defendants had deliberately concealed a number of facts relevant to their claims.

The Court of Appeal rejected this assertion.  In so doing, it noted that LA 1980, s 32 is to be narrowly interpreted. It is concerned with the discovery of facts which are ‘essential for a claimant to prove in order to establish a prima facie case’ and not those which would make the claimant’s case stronger.

Lesson to be learnt

If you want to rely on LA 1980, s 32 to suspend limitation, you will have to demonstrate that the ‘relevant’ acts which you assert were concealed are facts which are essential to the pleading of your claim and not just facts which will enhance your prospects of success. Where your claim is based on matters around which there may well be other contemporaneous information, such as reports or findings of other trade bodies or tribunals, then do not ignore such information but ensure that this is analysed to see if it gives you the facts required to plead your claim.

Read the remainder of the series

Part One: What is knowledge for the purpose of the Limitation Act (Jacobs)

Subscribers to LexisPSL Dispute Resolution can find further details: LA 1980, s 32(1)(b) suspension of limitation refused in competition law claims (Arcadia Group Brands v Visa Inc)

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About the author:
Ruth specialises in general corporate and commercial dispute resolution with particular experience in shareholder disputes, fraud and warranty claims. Ruth trained and qualified at Berwin Leighton Paisner LLP (now Bryan Cave Leighton Paisner LLP) where she remained in practice for ten years. Her work has involved project managing large-scale cases to trial in the chancery and commercial courts. Ruth was actively involved in in-house training with a particular focus on all aspects of evidence gathering and production, including authoring a user-manual on E-disclosure. She is also a contributor to the New Law Journal.