Ideal Shopping Direct Ltd and Others v Visa Europe Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 11 December 2020 |
| Neutral Citation | [2020] EWHC 3399 (Ch) |
| Date | 11 December 2020 |
| Docket Number | Claim Nos: HC-2017-001410, CP-2019-000002 |
| Court | Chancery Division |
[2020] EWHC 3399 (Ch)
Mr Justice Morgan
Claim Nos: HC-2017-001410, CP-2019-000002
Claim Nos: HC-2017-000474, HC-2017-001411, CP-2017-000015, CP-2018-000017, CP-2018-000023, CP-2018-000025, CP-2018-000027, CP-2018-000029, CP-2018-000033, CP-2019-000001, CP-2019-000012, CP-2019-000016, CP-2019-000024, CP-2020-000001
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Kassie Smith QC and Alexandra Littlewood (instructed by Scott + Scott UK LLP) for the Claimants
Brian Kennelly QC, Daniel Piccinin and Isabel Buchanan (instructed by Linklaters LLP and Milbank LLP) for the Visa Defendants
Mark Hoskins QC and Hugo Leith (instructed by Jones Day) for the Mastercard Defendants
Hearing dates: 19–20 November 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The applications before me are made in 16 different claims. In one group of claims, the Defendants are Visa Europe Ltd, Visa Europe Services LLC, Visa UK Ltd and Visa Inc. I will refer to these Defendants as “Visa” and to these claims as “the Visa claims”. There are two Visa claims. In the other group of claims, the Defendants are Mastercard Inc, Mastercard International Incorporated, Mastercard Europe SA and Mastercard/Europay UK Ltd. I will refer to these Defendants as “Mastercard” and to these claims as “the Mastercard claims”. There are 14 Mastercard claims.
One of the Visa claims is brought by Ideal Shopping Direct Ltd (“Ideal”). The second Visa claim is brought by 25 claimants who have been referred to collectively as “Vodafone”. The claim by Ideal was issued on 15 May 2017 and the claim by Vodafone was issued on 28 January 2019.
One of the Mastercard claims is brought by Ideal and another is brought by the Vodafone claimants. Apart from stating that many of the Mastercard claims have multiple claimants, it is not necessary for the purposes of this judgment to list all of the parties to those 14 claims. The first of the Mastercard claims to be brought was issued on 21 February 2017. Thereafter, the remainder of the Mastercard claims were issued at various times with the last of them being issued on 14 January 2020.
The claims made in these 16 cases were for breaches of competition law said to have been committed by Visa and Mastercard. The original claim forms are not all in the same terms. The claim forms appear to fall into two groups. One group alleged infringements of Article 101 and Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) or the comparable provisions in Articles 53 and 54 of the Agreement on the European Economic Area (“the EEA”) or in Chapter I and Chapter II of the Competition Act 1998. A second group of claims alleged only infringements of Article 101 of TFEU, Article 53 of the Agreement on the EEA and Chapter I of the Competition Act 1998.
Insofar as the contentions put forward in these 16 claims relate to Article 101 of TFEU, they are broadly similar to other claims made against Visa and Mastercard that have already been litigated. I refer in particular to three pieces of litigation, one of which was tried in the Competition Appeal Tribunal and two of which were tried in the Commercial Court. Appeals in all that litigation were the subject of a combined appeal to the Court of Appeal and then a combined appeal to the Supreme Court. The Supreme Court gave its judgment in those cases on 17 June 2020: see Sainsbury's Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24. The Supreme Court held that the matters complained of were restrictive of competition within the meaning of Article 101(1) of TFEU.
The 16 claims with which I am concerned were issued at a time when the earlier litigation was proceeding. The Claimants issued the claims in order to be able to recover damages for damage suffered in the 6 years before the issue of a claim. Nonetheless, it was recognised by the Claimants, and also by Visa and Mastercard, that it was in all their interests for these 16 claims to await the outcome of the other litigation. Accordingly, the solicitors for the Claimants sent copies of the issued claim forms to the Defendants' solicitors for information, and not by way of service, and invited the Defendants' solicitors to agree to an extension of time for service of the claim forms. The Defendants' solicitors did agree to extensions of time and when those extensions were due to expire they agreed to further extensions of time for service. In relation to these 16 claims, the last agreed extension of time ran until 17 July 2020.
In the period between the decision of the Supreme Court on 17 June 2020 and the deadline for service of 17 July 2020, the solicitors for the Claimants plainly made preparations to serve these 16 claims on the Defendants before the deadline. Whilst I do not know everything that was done by the solicitors, nor exactly when it was done, I was told that the solicitors for the Claimants prepared Particulars of Claim in these 16 cases, although I was not shown the various Particulars of Claim. The solicitors also wished to amend the claim forms in those cases where the original claim form had made a claim pursuant to Article 102 of TFEU as well as pursuant to Article 101 of TFEU; the reason for that appeared to be that, as the Supreme Court had held that the matters complained of were restrictive of competition within the meaning of Article 101(1), it was not necessary for the Claimants to take on the burden of relying on Article 102 in addition. Further, in some of the claims, the solicitors wished to remove some of the original parties and add others. I was not given a comprehensive list of all the cases in which there were changes in the identity of the Claimants but I can refer to the case of the Vodafone claimants in their claim against Visa as illustrative of this point. In that case, the original claim was brought by 25 Vodafone Claimants. Before 17 July 2020, it was decided to remove two of the original Vodafone Claimants and to add two further Vodafone Claimants. It also may be the case that the solicitors for the various Claimants took the opportunity to make other amendments to correct or tidy up the original pleadings.
The Claimants' solicitors were Scott+Scott UK LLP and the partner responsible for the work being done in the period from 17 June 2020 to 17 July 2020 was Ms Belinda Hollway. Ms Hollway has provided several witness statements in relation to the applications before me. She has made it clear in her evidence that she does not suggest that the tasks to be accomplished in the period from 17 June 2020 to 17 July 2020 were too onerous to be achieved in the time available.
The evidence indicates other steps that were taken by the solicitors for the Claimants in the period running up to 17 July 2020. On 7 July 2020, the solicitors wrote to the solicitors for Visa referring to a number of claims which were listed in an annex to that letter. That annex included the two claims against Visa with which I am concerned but it included other claims also. Each claim in the list was identified by reference to the parties and also by the number of the claim, which had of course been issued some time earlier. The solicitors for the Claimants stated, as the solicitors for Visa would know, that the identified Claimants were required to serve their claims by 17 July 2020. They therefore asked the solicitors for Visa to agree that service of documents in these claims could be served, by either side, by email.
On 10 July 2020, the solicitors for Visa replied and confirmed that, first, they were instructed to accept service on behalf of Visa and, secondly, Visa was willing to accept service of the claim forms and the Particulars of Claim by email to specified email addresses at Visa's solicitors.
In relation to the Mastercard claims, similar arrangements were agreed as to service of the claim forms on the solicitors for Mastercard, by email; I refer to the letter dated 7 July 2020 from the solicitors for the Claimants in those cases and the email reply dated 8 July 2020 from the solicitors for Mastercard.
I was also shown a letter written to the court by Scott+Scott, acting as solicitors for other claimants who had brought similar claims against Visa. In that letter, the court was informed that Visa had agreed extensions of time for service of the claim forms in 18 other cases. The letter stated that there had been earlier agreements as to the extension of time for service until 17 July 2020 and it was now being agreed that in one case time for service was extended to 17 August 2020, in another case time for service was extended to 28 August 2020 and in a further 16 cases, time for service was extended to 16 September 2020. Although the letter to the court was dated 17 July 2020, it seems at least likely that Scott+Scott had begun the communications which led to that letter before 17 July 2020.
The events of 16 and 17 July 2020
On 16 July...
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