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Court cuts down scope of damages claims in Visa interchange fee litigation

30/10/14

By judgment in Arcadia Group Brands Limited and ors v Visa Inc and ors [2014] EWHC 3561 (Comm), Mr Justice Simon today granted summary judgment and/or strike out in relation to claims brought in the Commercial Court by retailers against Visa, insofar as they concerned damages sustained more than six years before their dates of issue.

The Claimants, all well known high-street retailers, were the first of many to bring claims against the Visa defendants for damages for alleged breaches of competition law arising from Visa's setting and imposition of multilateral interchange fees (“MIF”) in the UK, EEA and Ireland. Under Visa's rules, when a customer pays a merchant using a Visa credit or debit card, the merchant's bank pays the customer's bank an “interchange fee”, the quantum of which, absent bilateral agreement between the banks, defaults to the MIF set by Visa. The Claimants contend, and Visa denies, that the MIF amounts to an illegal restriction of competition under, in particular, Article 101 TFEU. 

Visa argued that the claims were time-barred after six years under the Limitation Act 1980. The Claimants' case was that Visa had deliberately concealed, and continued to conceal, a number of relevant facts, including the methodologies by which the MIF were set, the rules that governed them, and the levels at which they were fixed, and that this prevented time from running by virtue of s.32(1)(b) of the same Act. The issue in Visa's application was whether, even if the facts relied on by the Claimants had been deliberately concealed, they constituted “relevant facts” within the meaning of s.32(1)(b). Visa argued that all truly “relevant facts” had been public knowledge more than six years before the claims were brought.

Simon J accepted Visa's submission that as a matter of law, facts that remained concealed at the time when the Court was considering the issue of limitation could not be “relevant” within the meaning of s.32(1)(b). Visa argued, and the Court agreed, that this followed from the fact that the relevant facts were those sufficient to plead a prima facie claim which, it held, the Claimants had done.

The Claimants intend to seek permission to appeal.

The judgment is here.

Fergus Randolph QC and Max Schaefer (instructed by Stewarts Law LLP) acted for the Claimants.

Daniel Jowell QC (instructed by Linklaters LLP) acted for the Third to Fifth Defendants/Applicants, Visa Europe.