United Kingdom Competition Appeals Tribunal

You are here: BAILII >> Databases >> United Kingdom Competition Appeals Tribunal >> Co-operative Group (CWS) Limited v Office of Fair Trading [2007] CAT 25 (27 July 2007)
URL: http://www.bailii.org/uk/cases/CAT/2007/25.html
Cite as: [2007] CAT 25

[New search] [Printable PDF version] [Help]



	Neutral citation [2007] CAT 25 IN THE COMPETITION Case No: 1081/4/1/07 APPEAL TRIBUNAL Victoria House Bloomsbury Place London 27 July 2007 WC1A 2EB Before: Marion Simmons QC (Chairman) Sitting as a Tribunal in England and Wales BETWEEN: CO-OPERATIVE GROUP (CWS) LIMITED Applicant -v- OFFICE OF FAIR TRADING Respondent

	Mr Matthew Cook (instructed by Clifford Chance) appeared for the Applicant Mr Julian Gregory (instructed by the Solicitor to the Office of Fair Trading) appeared for the Respondent Heard at Victoria House on 27 July 2007

	RULING ON COSTS



	THE CHAIRMAN: 1 The OFT has made an application for an order, under Rule 55 of the Competition Appeal Tribunal Rules 2003 (S.I. 2003 No. 1372) (“the Tribunal’s Rules”) that that CGL pay the OFT’s costs of defending CGL’s application. This application is resisted by CGL. CGL submits that either no order should be made against them, or that the OFT should not recover its whole costs. 2 CGL relies heavily on the judgment on costs in Celesio v Office of Fair Trading [2006] CAT 20 (“Celesio: Costs”). However, that case concerned an entirely different set of circumstances. As can be seen from paragraph 33 of Celesio: Costs, it was only after the elucidation in Mr Pritchard’s witness statement that Celesio had the full picture on one of the issues on fascia analysis and then acted responsibly in not pursuing that ground. Similarly, it can be seen from paragraphs 37, 38, 40 and 51 of Celesio: Costs that the success of the OFT in that case was based largely on the elucidation of the reasoning in Mr. Pritchard’s witness statement. 3 In the present case the decision was clear on its face, as were the undertakings. Mr. Pritchard’s elucidation explained background matters and the context in which the decision had been taken. I do not, therefore, find any assistance from Celesio: Costs in deciding whether to award costs in this case. 4 In section 120 cases costs would normally be awarded to the successful party (see, for instance, paragraph 17 of the judgment on costs in UniChem v Office of Fair Trading [2005] CAT 31). This is normally so whether or not a novel or important point is raised by CGL’s notice of application and is also so notwithstanding that the submissions made by the losing party were reasonable. 5 It is suggested by CGL that at the time of giving the Undertakings it did not anticipate a member of the co-operative movement proposing to purchase the “Funeral Divestment Businesses” (that term is defined in paragraph 1 of the main judgment, [2007] CAT 24). This does not appear to me to be a reason for resisting the OFT application for its costs in this case. The application for

	1



	review was of the Decision and it is not appropriate to go behind the Undertakings to investigate the reasons why CGL decided to give them. 6 Accordingly, I consider it is just and appropriate for the OFT to be awarded its reasonable costs. Hopefully, those costs will be agreed between the parties but otherwise they can be assessed in accordance with Rule 55(3) of the Tribunal’s Rules. (For discussion after Ruling see main transcript)

	2

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010