R (Competition and Markets Authority) v Competition Appeal Tribunal

The Divisional Court (Sir Julian Flaux C and Butcher J) has handed down a judgment on the UK-wide jurisdiction of the Competition Appeal Tribunal (“CAT”) to grant warrants to search business and domestic premises under ss.28-28A of the Competition Act 1998 (“CA 1998”). The Competition and Markets Authority (CMA) had sought judicial review of various decisions of the CAT, made in the context of its determination of the first application to it for such warrants.

Having considered that the appropriate forum for the determination of the claim was England and not Scotland, the Court held that:

1. The CAT had erred in holding that the condition in s.28A CA 1998 (which required that there must be reasonable grounds to suspect that there are documents on domestic premises which, if the CMA required to be produced by notice, would not be produced, but would instead be concealed, removed, tampered with or destroyed) could never be satisfied by the inference that could be drawn from the suspected existence of a secret cartel, despite such inference being capable of being enough in relation to the similar condition relating to business premises in s.28 CA 1998.
2. The CAT had exceeded its powers in making an order of its own motion that would have required the CMA to engage in a public interest immunity exercise in order to be able to disclose material on which it relied in seeking the warrants to the occupiers of the premises in relation to which warrants were granted. The time for such an exercise was when there was an application for disclosure or a challenge to the warrant.
3. The CAT had erred in identifying that its own judgment which contained the error in (1) was a guideline judgment and that a High Court judgment which contained the error in (2) was also a guideline judgment. Neither should be treated as a guideline judgment in the CAT or in any Court.

Naina Patel was the Advocate to the Court as the Competition Appeal Tribunal did not appear.

The full judgment can be found here.