Supreme Court refuses permission to appeal in competition damages limitation case

19/12/22

The Supreme Court has refused permission to appeal from the judgment of the Court of Appeal, which held that a follow on damages claim brought by Gemalto Holding BV against two participants in the Smart Card Chip cartel was out of time.

Mrs Justice Bacon DBE, applying the ‘statement of claim test’, found, at first instance, that the action was out of time because Gemalto knew all it needed to plead a claim, at the latest, following publication of a press release associated with a Statement of Objections (“SO”), which stated that the Commission had reason to believe there had been a cartel in SCCs involving the defendants.  From that date, Gemalto knew everything that was necessary to plead a non-strikeable claim. That conclusion was affirmed by the Court of Appeal (Vos MR, Green LJ, Birss LJ) which applying, for the first time, the ‘FII test’ to claims for deliberate concealment, held that Gemalto knew that it had a ‘worthwhile claim’ more than 6 years before the action was brought. 

Gemalto’s application for permission to appeal against that judgment has now been refused on the basis that the application did not raise an arguable point of law (Lords Reed, Rose and Richards).

The final outcome of this litigation has important practical consequences for both claimants and defendants in competition law damages claims.

The Judgment of the Court of Appeal is available here.