Ideal Shopping Direct Ltd and Others v Mastercard Incorporated and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Sir Julian Flaux C,Lord Justice Birss |
| Judgment Date | 13 January 2022 |
| Neutral Citation | [2022] EWCA Civ 14 |
| Docket Number | Case Nos: A3/2021/0138 and A3/0138A |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 14
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
MR JUSTICE MORGAN
[2020] EWHC 3399 & 3464 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Julian Flaux, CHANCELLOR OF THE HIGH COURT
Lady Justice Elisabeth Laing
and
Lord Justice Birss
Case Nos: A3/2021/0138 and A3/0138A
Kassie Smith QC, Fiona Banks & Alexandra Littlewood (instructed by Scott+Scott UK LLP) for the Appellants
Mark Hoskins QC and Hugo Leith (instructed by Jones Day) for the Mastercard Respondents
Brian Kennelly QC and Isabel Buchanan (instructed by Linklaters LLP and Millbank LLP) for the Visa Respondents
Hearing dates: 16 & 17 November 2021
Approved Judgment
Introduction
This appeal, with the permission of the judge, concerns whether service of an unsealed amended claim form is good service and, if it is not, whether the failure to serve a sealed claim form is an error of procedure capable of rectification under CPR 3.10. By his judgment dated 11 December 2020, Morgan J held that, since the documents served on 17 July 2020 were not sealed, they were not claim forms so that no claim form was served within the time permitted for service under CPR 7.5 as extended by agreement of the parties. He went on to hold, following the decision of the Court of Appeal in Vinos v Marks & Spencer plc [2001] 3 All ER 784, followed in subsequent decisions of this Court, that the defect in service could not be remedied under CPR 3.10.
In the case of the Visa respondents, there is a cross-appeal, for which permission to appeal was granted by Lewison LJ, as to the meaning of an undertaking given by the appellants to those respondents as a condition of the latter agreeing to extensions of time for service. The judge held that on the correct construction of the undertaking, it did not preclude the appellants from issuing fresh proceedings seeking substantially the same relief as in the original proceedings.
Factual background
The appellants issued at least 16 claims against Visa and Mastercard on various dates between February 2017 and January 2020 alleging breaches of competition law, including of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). These claims are broadly similar to those in the three pieces of litigation concerning the lawfulness of multi-lateral interchange fees (“MIFs”) which were the subject of a combined appeal to the Court of Appeal and then a combined appeal to the Supreme Court, culminating in a judgment given on 17 June 2020: Sainsbury's Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24, holding that the matters of which complaint was made were restrictive of competition under Article 101 of the TFEU.
The 16 claims were all issued at a time when that earlier litigation was in process, in order to recover damages for losses suffered in the six years before the issue of the claim form in each case. It was recognised by the appellants and the respondents that it was in everyone's interest for these claims to await the outcome of the Sainsbury's litigation. Accordingly, the appellants' solicitors sent copies of the issued claim forms to the respondents' respective solicitors for information and not by way of service, inviting them to agree an extension of time for service of the claim forms. Extensions of time were agreed and when those extensions were due to expire, further extensions were agreed, the last of which ran until 17 July 2020.
The extensions of time agreed by the Visa respondents were expressed to be in consideration of an undertaking given by the appellants' solicitors in these terms:
“Our client hereby undertakes to each of the Defendants and to the Court not, at any point in the future, to discontinue, withdraw or otherwise bring to an end the Proceedings and issue a further claim (or claims) in substantially the same or equivalent form, whether to seek some form of perceived advantage under Directive 2014/104/EU, as implemented by Member States in due course, or otherwise.”
As the judge explained at [99] of his judgment, the relevant provision of that Directive is Article 10, which required Member States to lay down rules applicable to limitation periods for bringing actions for damages for breach of competition law, whether under Articles 101 and 102 of the TFEU or national competition law.
In the period of a month between the Supreme Court judgment being handed down on 17 June 2020 and the deadline for service of 17 July 2020, the appellants' solicitors made preparations for service, including amending original claim forms which had made an alternative claim under Article 102 of the TFEU to delete that alternative claim which was unnecessary in the light of the Supreme Court judgment. In some claims, parties were removed or new parties were added. Particulars of Claim were also prepared. Ms Hollway, the partner at the appellants' solicitors with responsibility for that work, has provided several witness statements. In paragraph 24 of her first Visa statement and paragraph 23 of her first Mastercard statement, she says in terms that she is not suggesting that the tasks to be accomplished in that period were too onerous to be completed in the time available.
During that period, arrangements were also agreed with the respondents' respective solicitors as to service of the amended claim forms by email. The same solicitors were also acting for other claimants on whose behalf further extensions of time beyond 17 July 2020 were agreed with Visa's solicitors to various dates in August and September 2020.
On 16 July 2020, the appellants' solicitors filed electronically via CE File two other claim forms not included in the 16 with which the appeal is concerned. It would appear that at 18.15 and 18.47 the appellants' solicitors received the automatic notification referred to in paragraph 5.3 of PD51O, the Electronic Working Pilot Scheme (as to which see further below) acknowledging that the documents had been submitted and were being reviewed by the Court prior to Acceptance. Those two claim forms achieved Acceptance and were thus sealed by the Court at 14.34 and 14.39 on 17 July 2020. It seems that the sealed claim forms were served on Mastercard's solicitors before midnight on 17 July 2020.
The appellants' solicitors continued the process of filing other claim forms electronically on 17 July 2020 (which was a Friday). In relation to the 14 Mastercard amended claim forms the subject of the appeal, the notification under paragraph 5.3 of PD51O was received at various times that day between 09.58 and 16.38. The claim form for which notification was received at 09.58 achieved Acceptance at 15.52 that day so that the appellants' solicitors could have served the sealed claim form before midnight on 17 July 2020, though they did not do so, apparently because at 15.20 they had already sent Mastercard's solicitors by email the unsealed amended claim form. Of the other Mastercard amended claim forms, 12 of them achieved Acceptance on Monday 20 July 2020 and one on 22 July 2020 because initially the Court raised a query and rejected the amended claim form before later accepting it. All 13 of these amended claim forms were treated in accordance with paragraph 5.4 of PD51O as having been issued on 17 July 2020.
In relation to the two Visa amended claim forms with which the appeal is concerned, the notification under paragraph 5.3 of PD51O in the claim by Ideal was at 12.43 on 17 July 2020 and Acceptance was at 09.38 on 20 July 2020. In the case of the claim by Vodafone, notification was at 15.23 on 17 July 2020 and Acceptance at 11.45 on 20 July 2020.
The evidence of Ms Hollway as to her firm's understanding of the time taken between filing of a claim form by CE File and receipt of Acceptance together with the issued and sealed claim form, was that it could take anything from one hour to one business day or more. Although in her evidence she referred to the Rolls Building Courts Charter which gave an indication of no more than 90 minutes between filing of an originating document and issue, she confirmed that she was not aware of that statement at the time on 17 July 2020. She also referred to the CE file log-in page which referred to the pandemic and stated that the most urgent filings were being given priority but that users might experience a delay in the processing of routine filings.
On 17 July 2020, after the appellants' solicitors had sent the amended claim forms and the Particulars of Claim to the Court electronically for filing, they did not immediately send the unsealed documents to the respondents' solicitors. Ms Hollway said that they wanted to allow time for the sealed amended claim forms to be available for service but when, at about 15.00, they had not been issued, the decision was taken to serve the unsealed amended claim forms and accompanying documents. This was done by email to the respective respondents' solicitors between then and about 16.32 that day.
Ms Hollway gave evidence as to her state of mind that day about what was needed to serve the amended claim forms. She said that she believed the amended claim form had to have been filed electronically before it was served but it did not occur to her or any member of her team that it was necessary to have sealed amended claim forms in order to effect valid service. If it had occurred to her that her method would not be good service, she would either have contacted the court to ask for sealing of the amended claim forms to be expedited or, if...
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