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[2016] WLR (D) 462

Competition Appeal Tribunal

Deutsche Bahn AG and others v Mastercard Inc and others

Peugeot Citroen Automobiles UK Ltd and others v Pilkington Group Ltd and others

[2016] CAT 14

2016 April 29; July 27

Roth J, Lord Doherty, Margot Daly

Competition— Competition Appeal Tribunal— Statutory limitation period— Claimant bringing follow-on competition claim in Competition Appeal Tribunal— Foreign law governing substantive claim— Whether applicable limitation period determined by foreign or United Kingdom law— Foreign Limitation Periods Act 1984 (c 26), s 1— Competition Act 1998 (c 41), s 47A(1) (as inserted by Enterprise Act 2002 (c 40), s 18(1))— Competition Appeal Tribunal Rules 2003 (SI 2003/1372), r 31

Where a follow-on competition damages claim arising before 1 October 2015 is brought before the Competition Appeal Tribunal pursuant to section 47A of the Competition Act 1998 and the proceedings are treated as proceedings in England and Wales, Northern Ireland and Scotland, but the substantive claim is governed by foreign law, the relevant foreign rules of limitation will ordinarily apply, pursuant to section 1 of the Foreign Limitation Periods Act 1984. The 1998 Act and the Competition Appeal Tribunal Rules 2003 do not form a distinct, sui generis scheme, and there is nothing in them which requires exclusion of otherwise applicable enactments, including the 1984 Act. There is no overriding policy reason which indicates that the limitation rules should be given extraterritorial effect so as to displace otherwise applicable foreign law rules on limitation (paras , 58, 59, 63, 67).

Where, therefore, in a competition damages claim brought before the Competition Appeal Tribunal where the proceedings were treated as proceedings in England and Wales but substantively governed by foreign law, the preliminary issue arose as to whether the limitation rules were governed by the Foreign Limitation Periods Act 1984 or the Competition Act 1998 in conjunction with the Competition Appeal Tribunal Rules —

Held, that on the assumption that foreign laws applied to the claims under section 47A of the 1998 Act as alleged by the claimants, the foreign rules relating to limitation applied in respect of those claims pursuant to section 1 of the 1984 Act (paras 70, 71).

Kieron Beal QC, Tristan Jones and Eesvan Krishnan (instructed by Hausfeld & Co LLP) for the claimants in the first case.

Thomas de la Mare QC, Tristan Jones and Eesvan Krishnan (instructed by Hausfeld & Co LLP) for the claimants in the second case.

Mark Hoskins QC and Matthew Cook (instructed by Jones Day) for the defendants in the first case.

Adam Johnson, solicitor and Kim Dietzel, solicitor (of Herbert Smith Freehills LLP ) for the defendants in the second case.

Mark Hoskins QC and Sarah Ford (instructed by Freshfields Bruckhaus Deringer LLP) for the rule 39 defendants in the second case.

Joshua Teng, Barrister