The King (on the application of the Competition and Markets Authority) v The Competition Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | Sir Julian Flaux C,Mr Justice Butcher |
| Judgment Date | 22 April 2024 |
| Neutral Citation | [2024] EWHC 904 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-003735 |
and
[2024] EWHC 904 (Admin)
Sir Julian Flaux CHANCELLOR OF THE HIGH COURT
and
Mr Justice Butcher
Case No: AC-2023-LON-003735
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Marie Demetriou KC and Richard Howell (instructed by the Competition and Markets Authority) for the Claimant
Naina Patel as Advocate to the Court (appointed by the Government Legal Department)
The Defendant and the Interested Parties did not appear and were not represented
Hearing dates: 13 and 14 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction, the Grounds and other background
The claimant, to which I will refer as “the CMA”, seeks to judicially review three decisions of the defendant, to which I will refer as “the CAT”, in relation to applications made by the CMA for four warrants under sections 28 and 28A of the Competition Act 1998 (“CA 1998”) to search premises occupied by the Interested Parties. Pursuant to the Order of Swift J dated 15 January 2024, we held a “rolled-up hearing” to determine whether permission to apply for judicial review should be granted and, if it was, to then determine that judicial review. The CMA sought three warrants under section 28 to search business premises occupied by the first and second Interested Parties (two of which were in England and one in Scotland). It also sought a warrant under section 28A to search domestic premises in Scotland occupied by, amongst others, the third Interested Party, Mr X, whose identity is the subject of an anonymity order made by Murray J on 15 December 2023.
The CAT (constituted of the President, Sir Marcus Smith, Lord Ericht and Professor Rachael Mulheron) heard the applications ex parte at a hearing in private on the evening of 12 October 2023 and granted the CMA the warrants sought in respect of the business premises but refused the application in respect of a warrant to search the domestic premises of Mr X. Reasons for the decision were given in a judgment handed down to the CMA in private on 17 October 2023, [2023] CAT 62 (“the warrants judgment”).
An issue then arose as to whether the warrants judgment should be published and, in a judgment dated 6 November 2023, [2023] CAT 68 (“the publication judgment”) the CAT decided that it should be. In [10(2)] of the publication judgment, the CAT stated that: “….the publication of appropriately redacted open judgments recording the reasons for the exercise (or non-exercise) of this jurisdiction is peculiarly important, not merely so that the instant case can be appropriately challenged, but so that there is guidance in future cases”. The CAT concluded that the warrants judgment was “a ‘guideline judgment’ and may in future be cited before any court”, referring to [6.1] of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 (“the 2001 Practice Direction”) issued by Lord Woolf CJ. The CAT stated that this applied not only to the warrants judgment but to an earlier judgment of Marcus Smith J in the Chancery Division in CMA v Various Unnamed Defendants [2019] EWHC 662 (Ch) (“the 2019 High Court judgment”). Neither the warrants judgment nor the 2019 High Court judgment contained an express statement that “it purports to establish a new principle or to extend the present law” as required by [6.1] of the 2001 Practice Direction.
On 30 November 2023, the CMA wrote to the CAT informing it that in the absence of a right of appeal under the CA 1998, it would be applying to the Administrative Court for judicial review of the refusal by the CAT to grant a warrant to search Mr X's domestic premises and of the CAT's designation of the warrants judgment and the 2019 High Court judgment as “guideline judgments” within the meaning of the 2001 Practice Direction. The CMA indicated that it no longer actually sought a warrant in respect of Mr X's domestic premises.
The warrants judgment was published by the CAT on 7 December 2023. The judgment as published made clear on its face that the CAT had been sitting as a Tribunal in England and Wales in respect of the application for warrants in relation to business premises in England and as a Tribunal in Scotland in respect of the application for warrants in relation to the business and domestic premises in Scotland. The CAT is, of course, a UK Tribunal. In a letter of 7 December 2023 in response to the CMA's letter of 30 November 2023, the CAT drew attention to the fact that it had sat as a tribunal in Scotland in respect of the Scottish warrant applications and that its constitution had included Lord Ericht, a Judge of the Outer House of the Court of Session. It asserted that it would seem incontrovertible that any review of the CAT's decision on the application for a warrant in respect of the domestic premises of Mr X was a matter for the Court of Session.
The warrants in respect of the business premises were not challenged by the first or second Interested Parties. However, on 8 December 2023, the President made an Order of his own motion which identified the first and second Interested Parties as respondents and directed that there should be a hearing on 19 January 2024 to determine whether the originating applications for the warrants and supporting material, together with the transcript of the hearing in private on 12 October 2023 should be published on the CAT website. He directed that by 15 December 2023, the CMA should identify those parts of the supporting material in respect of which public interest immunity (“PII”) was claimed and provide the balance of the supporting material to the respondents (i.e. the first and second Interested Parties) by 20 December 2023. A timetable was set for submissions in relation to publication of the material on the CAT website.
On 15 December 2023, the CMA issued its Claim Form in the present proceedings, with its Statement of Facts and Grounds. Three Grounds are advanced. The first Ground concerns the refusal of the CAT to grant a warrant in respect of Mr X's domestic premises. In the warrants judgment, the CAT held that one of the conditions for granting a warrant under both section 28 and section 28A of CA 1998, namely that there were reasonable grounds for suspecting that there were on the premises (whether business or domestic) documents which the CMA has power under section 26 of CA 1998 to require to be produced, was satisfied. In relation to the second condition in section 28(1)(b)(ii), that, if those documents were required to be produced, they would not be produced, but would be concealed, removed, tampered with or destroyed, the CAT found [at [15(1) to (3)]] that, given that this was a secret cartel case where there is a strong motive to conceal evidence of the parties' involvement, an inference could be drawn that this condition was satisfied in relation to the business premises.
However, in relation to the identically worded provision in section 28A(1)(b)(ii), the CAT found at [15(4)] of the warrants judgment that the inference from the suspected existence of a secret cartel of destruction etc of documents was not enough in and of itself to justify the issue of a warrant in respect of domestic premises. Something more to suggest a propensity to destroy needed to be asserted in evidence when a named individual's domestic premises are identified for entry pursuant to a warrant, particularly where, as here, other persons occupied the premises. By Ground 1, the CMA contends that the CAT erred in law on the basis that, since the two provisions in sections 28 and 28A respectively are identically worded, they should be given the same meaning and effect. Even though the CMA no longer seeks a warrant in respect of Mr X's premises, so that to that extent the Ground is academic, the CMA still invites the Court to determine it, since it raises a pure point of law of general application and the approach of the CAT would place an unwarranted fetter on the power to grant warrants under section 28A of CA 1998.
By Ground 2, the CMA does not challenge the decision to publish the warrants judgment, but contends that, in deciding that the warrants judgment and the 2019 High Court judgment are guideline judgments which can be cited in any Court, the CAT has exceeded its powers. The CMA contends that neither judgment may be cited because neither contains the necessary express statement under [6.1] of the 2001 Practice Direction. Furthermore, it was not within the powers of the CAT to determine whether, under the practice of the Supreme Court or the Courts of Scotland and Northern Ireland, the two judgments could be cited before those Courts.
Ground 3 seeks to challenge the Order of 8 December 2023 which the CMA contends was ultra vires and unlawful. The CAT erred in law (i) by requiring the CMA to identify PII material within the supporting material in the absence of any indication of an intention to challenge the warrants by the Interested Parties; and (ii) by proposing to make the supporting material available to the public at large without any request for access. The CAT explained in its letter of 7 December 2023 that the reason the Order was being made was because the warrants judgment “cannot be fully understood (still less challenged)” without the disclosure of the supporting material. This assertion was inconsistent with its position in the publication judgment, where it stated that the warrants judgment contained “ the reasons for the order [granting or refusing...
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