Granville v Infineon/Micron: competition damages actions are not a waiting game
The recent High Court judgment in Granville v Infineon addresses English limitation rules as they apply to competition claims and is a cautionary tale for claimants. As a claimant, time starts to run when you know enough information to plead your case, and you should not necessarily sit back and wait until an infringement decision becomes final before starting the clock on bringing a damages action.
The claims in question follow on from the European Commission’s Settlement Decision dated 19 May 2010 in respect of the DRAM memory chips cartel (the Decision). The claimants are companies within the Granville Technology Group, a British computer retailer and manufacturer, and were all in liquidation at the time of filing. The defendants are Infineon Technologies and Micron Europe, two of the Decision’s addressees.
In this case the High Court ruled that the claims brought by two of the three claimants were time-barred as those claimants knew enough to plead their case in 2005, but waited until May 2016, exactly 6 years after the Decision was issued in May 2010, to file proceedings. The third claimant had ceased trading and was in administration in 2005 and was not similarly put on notice. It followed that the third claimant was in time, as limitation only started to run at the date of the Decision.
There are four key points arising from the judgment:
- For time to start running, the claimant only needs to know, or be able to know with reasonable diligence, the facts enabling it properly to plead its case. For a competition damages claim, those facts fall into four categories: (i) an agreement or concerted practice between the undertakings; ii) having as its object or effect the prevention or distortion of competition which is appreciable; iii) which affects trade between member states, or within the United Kingdom, or within the Republic of Ireland; and iv) which has caused some loss and damage to the claimant.
- For the purpose of ‘triggering’ the limitation period, the claimant may have knowledge of these facts from a number of sources, at the very least, knowledge of facts which put it on notice that it needs to further investigate the potential infringement. In this case the facts were fairly stark, including guilty pleas by the company in US investigations relating to worldwide conduct, and detailed discussions with external lawyers regarding the possibility of bringing a claim, including for European losses, and the terms on which it might be brought. Potential claimants should consider these issues very carefully if an investigation is ongoing, as the line may not be straightforward to draw in all circumstances.
- The duty to investigate may apply differently to claimants that have ceased trading by the time the relevant facts become discoverable – as is often the case for companies who have suffered from anti-competitive conduct at the hands of others. In this case, the company which was actually in administration at the relevant time was not put on notice – on the facts of the case. However, it is important to bear in mind that, once relevant knowledge has been acquired, entering into administration after that does not stop the clock. Information, once known, is held not to be forgotten, and the clock continues to run even if the company enters administration or liquidation.
- Finally, there is an apparent divergence between European and English law on the extent to which strict application of limitation rules may be waived to offer a claimant an effective remedy. In this case, arguments based on European case law including Cogeco and Kemira, to the effect that the strict imposition of English limitation rules deprived the claimants of an effective remedy, were ineffective. Claimants before the English court must therefore take the Limitation Act as the starting point in their analysis, and not assume that European case law will come to their rescue where the national rules are clear.
Practical implications going forward
The judgment is a forceful reminder that claimants need to monitor the time for bringing a competition damages claim from the date they are put on notice of the potential infringement (for example, by having read about an ongoing investigation in the press).
It is not sufficient to wait for a Decision to be issued and to count from there, and so advice should be sought at an early stage to ensure that all options for bringing a claim, whether in the High Court or the Competition Appeal Tribunal, are preserved to the greatest extent possible.
 Judgment dated 28 March 2019 in Case C‑637/17 Cogeco Communications Inc v Sport TV Portugal SA and Others. The judgment.