Tuesday, June 29, 2010
Posted by D. Daniel Sokol
Romano Subiotto QC and Ruchit Patel (Cleary Gottlieb) describe Deliberate Concealment in Cartel Claims.
ABSTRACT: This paper examines the application of the deliberate concealment doctrine (as contained in the UK Limitation Act 1980) to damages claims based on alleged cartel activity ("cartel claims") brought in the English High Court. The nature and scope of the cartel claims that have been brought to date indicate that the issue of whether, and to what extent, a claimant's action is brought "in time" raises novel, interesting, and complex legal questions. It therefore seems likely that this important battleground is destined to be the subject of a great deal of further litigation in the near future.
It is perhaps instinctive to assume that because a claimant is usually unaware that he has a claim prior to the announcement of an infringement decision, time ought to run from the date of the infringement decision. However, as explained below, the position under English law is that, unless certain elements are evident (e.g., fraud, mistake, or deliberate concealment), time starts to run from the date that the cause of action accrues. Cartel claims normally concern the level of any overcharge arising from the alleged cartel and, as such, time will normally begin to run from the date of the sale of the good or service. As some such sales may have taken place long before the expiry of the relevant limitation period, one of the key questions in cartel claims is often whether that limitation period has been postponed due to deliberate concealment by the defendant of a fact relevant to the claimant's action.
Section I of this paper examines the law and policy underlying the deliberate concealment doctrine, and Sections II and III highlight some of the key questions surrounding the respective elements of "deliberate" and "concealment" in the context of cartel claims.