Deutsche Bahn faces limitation block in MasterCard Interchange litigation

The Court of Appeal has ruled that Deutsche Bahn cannot backdate a claim to benefit from an earlier limitation period when attaching a new claim to its ongoing damages action against MasterCard.

CPR Part 17.4(2) provides that, if a party applies to amend a statement of case and a period of limitation has expired, the court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

The original claim alleges that MasterCard’s EEA and domestic multilateral interchange fees infringe competition law, relying on the European Commission’s 2007 infringement decision against MasterCard.  The new claim maintains that MasterCard’s central acquiring rule itself infringes competition law.

The Court of Appeal concluded that the High Court was incorrect to find that the requirements of CPR Part 17.4(2) were satisfied.  The differences in the counterfactual to be applied indicated that the new claim did not arise out of the same facts or substantially the same facts as those in issue in the original claim.

These proceedings are separate from a damages action brought in December 2015 in the CAT by Deutsche Bahn and others against MasterCard. The CAT action has been stayed until 14 days after the final outcome of the preliminary issue hearing listed to be heard on 8 to 19 May 2017 in the High Court.

MasterCard Inc & Others v Deutsche Bahn AG & Others [2017] EWCA Civ 272