Court of Appeal rejects attempt to rely on post-Brexit CJEU Judgment to extend limitation

23/12/24

The Court of Appeal handed down judgment on 19 December in a limitation dispute arising out of the long-running damages claims brought by various parties who say they suffered loss as a consequence of the charging of excessive Multilateral Interchange Fees by Visa and Mastercard (the Umbrella Overcharge Claims).

The Competition Appeal Tribunal at first instance held that they were not bound to follow a post-Brexit Judgment of the CJEU, which found that limitation could not run in respect of a competition damages claim until the infringement had come to an end (the ‘Cessation Requirement’). Accordingly, they refused to extend time back to 1992 (and potentially earlier).

The Court of Appeal dismissed the Umbrella Overcharge Claimants’ appeal:

• Following a careful analysis of the European Union Withdrawal Act 2018, they held that they were not bound by the recent judgment of the CJEU in Heureka Group a.s. v Google LLC [2024] (Case C-605/21), following the reasoning of the Supreme Court in Lipton v BA Cityflyer Ltd [2024] UKSC 24.
• The Court also held that the reasoning in Heureka  was a departure from the law as it stood on Implementation Period Completion Day and so was not a “good fit” with EU law at that point. As a result, the Cessation Requirement – set out in Heureka – does not form a part of UK law.
• Furthermore, the Court were bound by a previous judgment of the Court of Appeal in Arcadia Group Brands Ltd and others v Visa Inc [2015] EWCA Civ 883, in which an earlier Court of Appeal had found that the Limitation Act 1980 was compatible with the requirements of EU law and the principle of effectiveness.

The Judgment provides important clarity in relation to how limitation rules will apply to causes of action that accrued prior to Brexit.

The Judgment is here.