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The claimants that knew too much: High Court rules on applicability of concealment provisions in Limitation Act 1980 in competition damages claim

24 December 2014. Published by Chris Ross, Partner

The Arcadia Group[1] case arose in the context of ongoing damages claims brought by a number of retailers and other merchants against both Visa and MasterCard for breaches of competition law in relation to the charging of interchange fees in the Visa and MasterCard payment systems.

MasterCard and Visa both operate card payment systems under which merchants are charged an "interchange fee" on transactions processed using MasterCard and VISA branded credit and debit cards. The level of fee may be negotiated between the particular "acquiring bank" (i.e. the merchant's bank) and "issuing bank" (the consumer's bank) for any transaction but, more commonly, is set by reference to default rates known as "multilateral interchange fees" ("MIF").

In a decision dated 19 December 2007, the European Commission found that MasterCard's intra-EEA MIF arrangements infringed EU competition law and did not merit an exemption.  The duration of the infringement was found to be from 22 May 1992 to 19 December 2007.  The Decision was appealed by MasterCard but was finally affirmed by the Court of Justice of the European in September 2014.

The VISA scheme was also subject to scrutiny by the European Commission over a number of years.  In 2010 and 2014 VISA entered into certain commitments in relation to MIFs with the European Commission.  As such no infringement decision has been issued against VISA, despite the similarity in the factual matrix.

A number of damages claims have been brought against both MasterCard and VISA in the English courts by a variety of merchants including, in this case, a number of high street retailers.  This case related to VISA; claims against MasterCard raising similar issues are ongoing and are likely to come before the courts in early 2015.  To read the article and commentary on the Arcadia case, which is a claim seeking the repayment of fees going back to 1977 and involved issues of limitation, please click here.

[1] Arcadia Group Brands Limited & ors v Visa Inc & ors [2014] EWHC 3561