Jurisdiction(s):
United Kingdom

Court of Appeal (England and Wales) reinstates CMA hydrocortisone cartel fines; CAT erred by importing dishonesty requirement and re-running case; cross-examination adequate; excessive pricing penalties unaffected

Published on: 11 September 2024

Published by a Law360 reporter

Legal News

Article summary

The Court of Appeal has set aside the Competition Appeal Tribunal’s decision that had scrapped the penalties, finding the tribunal misconstrued the regulator’s case about a market‑sharing arrangement that pushed up prices of life‑saving hydrocortisone tablets. According to the appeal judges, the tribunal erred in thinking the CMA alleged the companies had knowingly broken competition law. Because the tribunal misread the case advanced by the CMA, the two were, as the judgment put it, largely ‘passing each other like ships in the night’. The judgment stresses that the CMA’s case contained no accusation of misconduct or dishonesty by any party or witness. Requiring the authority to prove dishonesty would make enforcement unworkable; the legislation does not demand it and, consequently, neither should the tribunal. The Court of Appeal further held that the regulator properly tested the companies’ witnesses in cross‑examination on the case it had made out. The fact that counsel did not put propositions of lying or dishonesty to those witnesses did not weaken the CMA’s position, the court concluded...

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