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Arcadia & others v Visa Inc & others

Retailers’ historic interchange claims against Visa struck out as being time-barred

Mr Justice Simon handed down judgment today in Arcadia Group Brands and others vs Visa Inc and others [2014] EWHC  3561 (Comm) striking out claims for damages, estimated to amount to £500 million, by a number of well known high street retailers, including Asda, B & Q, Debenhams, Argos, and Morrisons against Visa.

In the first substantive judgment in one of the several actions for damages brought by retailers against Visa, Simon J has held that all claims dating from between 1977 and 2007 are time-barred and that the retailers are not entitled to rely upon an allegation of deliberate concealment of relevant facts in order to extend the limitation period for claims for losses going back to 1977.

Arcadia and other retailers have brought claims against Visa Europe and Visa Inc for damages for breach of EU, UK and Irish competition law, alleging that the price they have paid for accepting credit and debit cards has, since 1977, been inflated as a result of the multilateral interchange fee (“MIF”) set by Visa.  Under the Visa rules, when a customer uses a Visa credit or debit card at a retailer, the retailer’s bank pays to the customer’s bank an “interchange fee” which is at the rate of the MIF, where there is no bilateral agreement between the two banks.  The retailers allege, and Visa denies, that the MIF is an unlawful restriction of competition under competition law.

In response to Visa’s case that all claims dating from before the primary six year limitation period are barred, the retailers contended that Visa had deliberately concealed a number of relevant facts, thereby extending the limitation period,  under s.32(1)(b) Limitation Act 1980, to cover claims going back as far as 1977.

Visa argued that, the facts alleged to have been deliberately concealed, did not amount to “facts relevant to the right of action” within s.32(1)(b).  Rather all such facts had been public knowledge for some considerable time before 2007. 

Simon J held, following established Court of Appeal authority, that the relevant facts for the purposes of s.32(1)(b) are only those facts which are sufficient to plead a prima face claim and that the Claimants here had been able to do that by 2007.  Moreover facts which remained concealed even now could not be “relevant facts” within s.32(1)(b). 

The judge observed that this was not a case of a “secret cartel” operating over many years without the knowledge of victims and authorities, which had been discovered long afterwards.  Rather the Visa payment systems and the MIFs were matters of public knowledge and had been notified to the competition authorities.  

Stephen Morris QC (instructed by Linklaters LLP) acted for the successful lead applicants, Visa Europe