United Kingdom Competition Appeals Tribunal

Neutral citation: [2005] CAT 6

Case No. 1048/1/1/05

IN THE COMPETITION

APPEAL TRIBUNAL

Victoria House
Bloomsbury Place
London WC1A.2EB
8th March 2005

Before: MARION SIMMONS QC (Chairman) PETER GRANT-HUTCHISON GRAHAM MATHER Sitting as a Tribunal in England and Wales
BETWEEN:

DOUBLE QUICK SUPPLYLINE LIMITED Appellant

and

OFFICE OF FAIR TRADING Respondent

Transcribed from the Shorthand notes of Beverley F. Nunnery & Co. Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: 020 7831 5627, Fax: 020 7831 7737
Mr. Matthew Cook (instructed by M&A Solicitors, Cardiff) appeared for the Appellant. Mr. Tim Ward (instructed by the Solicitor to the Office of Fair Trading) appeared for the Respondent.
R U L I N G:
 
Application to remit the Decision

THE CHAIRMAN:

1. The OFT was directed to file and serve a Defence in this case by 5 p.m. on 3^rd March 2005. In the event, the OFT filed a "provisional defence". On an important aspect of the case, the OFT reserved its position pending the consideration of documents disclosed to them voluntarily by the Appellant. Some of those documents were only disclosed last night and the OFT have told us today that they are not in a position to file a final Defence today.
2. The Appellants have asked us today to remit the OFT's Decision in order that the OFT make a new Decision on the evidence now available to them. This is strongly resisted by the OFT who request a further opportunity to file a final Defence. It is not clear to us, having heard submissions today, whether the OFT intends to rely on its Decision or whether it wishes, in effect, to take a new Decision having regard to the material which has now been voluntarily disclosed by the Appellant.
3. The OFT have told us today that it does not know what position it will be taking and needs to discuss the matter internally, including with the Head of Enforcement, and that it could provide a Defence which set out its position in 14 days from today. The effect of this submission is, in effect, that either the OFT's Defence will rely on the Decision taken or the OFT seeks to use the Defence to set out a new "Decision". That new Decision might, on the one hand, contain an alternative basis or reasoning for the fine imposed, relying on the new evidence for calculation of the fine imposed in the existing Decision. On the other hand, it may rely on an entirely new factual basis and reasoning for the infringement, with a different time period for the infringement, and then set out an entirely new calculation for the fine.
4. We consider that what the OFT is suggesting is that they be permitted to treat the Defence as the "Decision". We do not consider that that is an appropriate course for a competition authority to take. Unfortunately, the OFT have today not been able to tell us what their final position is. Apparently documents disclosed last night by the Appellant need to be considered for this purpose. It therefore seems to us that there are two possibilities open to the OFT. The first is to rely on the existing Decision without relying on new evidence, save in rebuttal. The second is to rely on new evidence which goes to an essential part of the case which it is up to the OFT to establish, or is relied on by the OFT to support a primary finding in the Decision, or is sought to be adduced by the OFT for the purpose of upholding an essential element in the Decision.
5. As has been made clear in previous Decisions of this Tribunal, including Aberdeen Journals and Argos and Littlewoods, the Tribunal should resist the situation in which matters of fact or the meaning to be attributed to particular documents are canvassed for the first time at the level of the Tribunal when they could (and should) have been raised in the administrative procedure and dealt with in the Decision. We appreciate that through apparent misunderstandings on the part of DQS and the OFT the relevant material was not available, or made available, at the time of the Decision and that neither party attributes blame to the other. However, the fact that the material has become available after the Decision does not alter the position outlined above as to what is appropriate for the administrative process and what is appropriate to be the subject matter of the appeal process.
6. The difficulty for the Tribunal today is that we do not know which way the OFT will go – neither does the OFT. So today we are faced with having to make some directions which will be workable, fair and procedurally correct. We are currently minded, subject to what we hear from the parties, to make some directions in the alternative, effectively putting the OFT to its election. Either the OFT should provide an additional Statement of Objections within 14 days, or it should put in a defence within 14 days. The Decision as to which to do will, of course, be made having regard to the Tribunal's comments, which I have just outlined. If there is an additional Statement of Objections then the procedure will follow in accordance with the OFT Rules, and this present Appeal can then be stayed pending the outcome.
7. If the OFT decides to defend its existing Decision the question of whether this is appropriate may be in issue and there may then need to be a CMC which we could hear on 7^th April 2005. This would give the Appellants two weeks to consider their position and would provide time for written submissions. The course which we provisionally propose seems to us to be an expedient way of proceeding and to preserve the distinction between the administrative process and the appeal process.