On 11 November 2020 the Scottish Court of Session rejected a prescription (or limitation) strike out brought by the Defendants in the Trucks cartel in an action for damages by multiple Scottish public authorities. The case concerns a Commission Decision rendered in July 2016 but not published until 2017.
Under section 6(4) of the Prescription and Limitation (Scotland) Act 1973, in “the computation of a prescriptive period in relation to any obligation for the purposes of this section— (a) any period during which by reason of— (i) fraud on the part of the debtor or any person acting on his behalf, or (ii) error induced by words or conduct of the debtor or any person acting on his behalf, the creditor was induced to refrain from making a relevant claim in relation to the obligation shall not be reckoned as, or as part of, the prescriptive period.”
The main issue before the Court was when concealment of the infringement came to an end for purposes of section 6(4), thereby starting the running of the prescription/limitation clock. The Defendants argued that it was before publication of the Commission decision, based on press and other public reports. The Court rejected this argument, holding that those reports did not identify the scope or extent of the price fixing activities under investigation, including its geographic scope, and did not identify the relevant legal entities involved. On this basis, the Court held that time did not start to run until July 2016, and so the claims were in good time. The Court did, however, find that claims prior to 1999 were time barred under the 2-year “long” prescription period in Scotland, albeit this had little or no practical impact on the claims.
The case is interesting both because it is the first Scottish case to consider limitation/prescription issues in a concealed competition law infringement context and in its treatment, and distinguishing, of recent English cases in this regard.
The judgment is here.
Robert O’Donoghue QC acted for the successful claimants/pursuers, instructed by Anderson Strathern.