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Supreme Court hears first case on the Competition Act 1998


On 24 October 2012 the Supreme Court handed down its judgment in BCL Old Co Limited & Ors v BASF plc & Ors concerning the application of the EU law principles of effectiveness and legal certainty to limitation periods. The Supreme Court (Lords Phillips, Walker, Mance, Clarke and Wilson) held that the operation of the statutory limitation period applicable to a claim for damages before the Competition Appeal Tribunal for participation in an unlawful cartel was compatible with EU law.

In BCL 1 [2009] EWCA Civ 434 the Court of Appeal had held that on a plain and ordinary interpretation of section 47A Competition Act 1998 and Rule 31 of the Competition Appeal Tribunal's Rules the Appellants' claim for damages had been brought out of time. In BCL 2 [2010] EWCA Civ 1258 the Court of Appeal held that there was no power to extend time. Before the Supreme Court the Appellants sought to argue that the commencement of the limitation period and the lack of power to extend it had been sufficiently legally uncertain prior to the Court of Appeal's judgments as to render its operation contrary to the EU law principles of effective protection and legal certainty.

The Supreme Court held that the relevant test was whether the existence of arguable doubt as to the operation of the limitation period or the need for statutory interpretation rendered it ‘excessively difficult' for claimants to enforce their EU law rights. It rejected the Appellants' submission that recent ECJ case law imposed a more stringent test that the statutory position must be ‘clear beyond doubt'. The Supreme Court considered that the position was ‘eminently and sufficiently foreseeable' and that the principles of effectiveness and legal certainty were satisfied.

The Supreme Court also proceeded to consider what relief might be appropriate in the event of a breach of the principles of effectiveness and legal certainty. It concluded that the remedy for lack of clarity in the operation of a limitation period lay against the State. The other party to civil litigation would not be deprived of the right to rely on a limitation defence in such circumstances.

The judgment is here.

Sarah Ford appeared for the successful Respondents instructed by Mayer Brown International.