ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE SIMON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE PATTEN
|(1) ARCADIA GROUP BRANDS LIMITED and others|
|(2) ASDA STORES LIMITED|
|(3) B&Q PLC|
|(4) COMET GROUP LIMITED (in liquidation)|
|(5) DEBENHAMS RETAIL PLC and others|
|(6) HOUSE OF FRASER (STORES) LIMITED|
|(7) ICELAND FOODS LIMITED|
|(8) NEW LOOK RETAILERS LIMITED|
|(9) NEXT RETAIL LIMITED|
|(10) RECORD SHOP 2 LIMITED (in liquidation) and others|
|(11) WM MORRISON SUPERMARKETS PLC||Claimants/Appellants|
| and |
|(1) VISA INC|
|(2) VISA INTERNATIONAL SERVICE ASSOCIATION|
|(3) VISA EUROPE LIMITED|
|(4) VISA EUROPE SERVICES INC
(5) VISA UK LIMITED
Dinah Rose QC and Brian Kennelly (instructed by Milbank Tweed Hadley & McCloy LLP) for the First and Second Respondents
Stephen Morris QC and Anneli Howard (instructed by Linklaters LLP) for the Third to Fifth Respondents
Hearing dates : 21 and 22 July 2015
Crown Copyright ©
The Chancellor of The High Court (Sir Terence Etherton) :
1980 Act section 32
"(1) where in the case of any action for which a period of limitation is prescribed by this Act -
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant;
the period of limitation shall not begin to run until the plaintiff has discovered the concealment or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."
The statements of case
"a. The manner and mechanisms by which the EEA MIF, UK MIF and Irish MIFs were and are set are secret and have never been disclosed to the Claimants.
b. At all material times, the precise nature and scope of the MIF arrangements were concealed from the Claimants.
c. At all material times, the responsibility of the various Defendants for the breaches of statutory duty pleaded above were concealed from the Claimants.
d. Until around 2009, the actual MIF levels which applied were concealed from the Claimants.
e. .[P]rior to  the MIF rates were not available or visible to the Claimants. In any event the relevant MIF rates have been imposed without negotiation and the mechanisms by which they are set have never been made available to the Claimants either via their Acquiring Bank or directly by the Defendants."
Limitation: 1980 Act section 32(1)(b)
"in construing [section 32(1)(b) of the 1980 Act], there is no middle ground between facts and evidence. It may be that the plaintiff's case following the quashing of the convictions would be evidentially stronger and have a better prospect of success. But I am unable to accept [the plaintiff's counsel's] submission that the quashing of the convictions adds anything to the plaintiff's knowledge of facts relevant to his right of action. Facts which improve prospects of success are not, as it seems to me, facts relevant to his right of action. [the plaintiff] knew the facts relevant to his claim in false imprisonment and in due course recited them in the statement of claim without, in relation to liability, any reference to the decision of the Court of Appeal (Criminal Division) or the matters which then emerged."
"The wording of section 32(1)(b) of the Limitation Act 1980 in my judgment is such that a narrow interpretation is necessary. In order to give relief to the plaintiff any new fact must be relevant to the plaintiff's "right of action" and is to be contrasted with a fact relevant, for example, to "the plaintiff's action" or "his case" or "his right to damages". The right of action in this case was complete at the moment of arrest. No other ingredient was necessary to complete the right of action. Accordingly, whilst I acknowledge that the new facts might make the plaintiff's case stronger or his right to damages more readily capable of proof they do not in my view bite upon the "right of action" itself. They do not affect the 'right of action', which was already complete, and consequently are not relevant to it."
"In one sense it is true to say that the tort of false imprisonment has two ingredients; the fact of imprisonment and the absence of lawful authority to justify it. It is to be noted that in his speech in Weldon v. Home Office  AC 58 at 162 Lord Bridge spoke of the tort as having those two separate ingredients. Indeed at a trial these two aspects of the tort are likely to be investigated. But as I understand the law, the gist of the action of false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious; he establishes a prima facie case if he proves that he was imprisoned by the defendant. The onus is then shifted to the defendant to prove some justification for it. If that be right, one looks at the words in section 32(1)(b) , "any fact relevant to the plaintiff's right of action". It seems to me that those words must mean any fact which the plaintiff has to prove to establish a prime facie case."
"Where a person to whom a cause of action for libel or slander has accrued has not brought such an action within the period of three years mentioned in section 4A of this Act because all or any of the facts relevant to that cause of action did not become known to him until after the expiration of that period, such an action
(a) may be brought by him at any time before the expiration of one year from the earliest date on which he knew all the facts relevant to that cause of action; "
"In section 32A Parliament has for actions for libel or slander breached the protection which a period of limitation ordinarily gives to a defendant. I do not consider that Parliament has intended, in the words used in section 32A, to create a breach so wide as to enable facts relevant to possible defences to the action to be a relevant consideration. Given the public interest in finality and the importance of certainty in the law of limitation, I would have expected Parliament to use words different and more general had the broad construction, with the uncertainties it involves, been intended."
"It is not enough that evidence that might enhance the claim is concealed, provided that the claim can be properly pleaded without it. The court therefore has to look for the gist of the cause of action that is asserted, to see if that was available to the claimant without knowledge of the concealed material."
"If time in respect of a cause of action "shall not begin to run" until the concealment has been discovered, and "shall not apply" to an action to which deliberate concealment under s.32(1)(b) applies, ultimately I see no compelling reason why a defendant responsible for the deliberate concealment which marks the original accrual of a right of action should not have to take the rough with the smooth: and so find that he has to answer for a (second) loss which he has not concealed and about which his claimant has known for too long together with the (first) loss which he has deliberately concealed and about which his claimant has only more recently discovered."
"The argument is that having regard to the purpose of s.32(1)(b), a fact is relevant to the claimant's right of action if it is causally relevant to the decision to pursue that right, i.e. ignorance of the fact explains why the claimant did not bring that particular right of action earlier. This involves a modification of the statement of claim test. If the fact of which he is ignorant is a necessary element in the right of action itself, i.e. if it satisfies the statement of claim test, then it will necessarily satisfy the requirement of causative relevance. Without knowledge of this fact, a claimant could not be expected to know that he had any right of action at all. But facts may be causally relevant to pursuing a cause of action even where a claimant knows enough to know that he could, in principle, pursue his right of action. To take the example I have already given, if a loss of which he knows is small it may not be worth litigating but once a much larger concealed loss is discovered, it fully explains why he only decided to pursue the legal action at that point. The concealed fact is relevant to this particular cause of action. But for ignorance of the second loss, he would have pursued the case earlier. By contrast, if the concealed fact does not explain why the action was not pursued earlier, it is not a relevant fact even though the claimant was in ignorance of it."
Limitation: EU jurisprudence
New limitation point
Lord Justice Richards
Lord Justice Patten