Cityhook Ltd & Anor, R (on the application of) v Office of Fair Trading & Ors

Where the Office of Fair Trading adopts decisions concerning cases potentially transferable to OFCOM, it acts unlawfully if it fails to invite OFCOM to consider whether it agrees to a transfer under regulation 7(1) of the Competition Act 1998 (Concurrency) Regulations 2004. The appropriate relief may include a declaration and mandatory orders requiring the OFT to make that invitation and report the outcome. A claimant who obtains declaratory and consequential relief but fails to quash the challenged decisions may receive no order for costs, with each party bearing its own costs.

The judgment concerned the form of the order and costs following an earlier decision on the merits of Cityhook’s judicial review claim. The claim sought to quash decisions notified by the OFT on 23 June 2006. The court made declarations and consequential mandatory orders concerning possible transfer of the Collective Boycott Case and the Collective Setting Case from the OFT to OFCOM. The remaining application to quash the contested decisions was dismissed. The central questions were the precise form of relief and the appropriate costs order.

1. Relief. The application for judicial review was dismissed insofar as it sought to quash the decisions notified by the OFT on 23 June 2006, subject to the declarations and orders made below.
2. Statutory duty. The OFT acted unlawfully because, when adopting the contested decisions, it did not invite OFCOM to consider whether it wished to agree to transfer the two cases under regulation 7(1) of the Competition Act 1998 (Concurrency) Regulations 2004.
3. Consequential orders. The OFT was ordered to invite OFCOM to consider whether it wished to agree to the transfers and, if requested, to provide information and documentation enabling OFCOM to make an informed decision. The OFT was also required to notify Cityhook and the interested parties of the steps taken and the outcome. There was liberty to apply concerning those orders.
4. Costs. Although the claimants obtained declaratory and consequential relief, they did not achieve their primary objective of quashing the contested decisions. Nevertheless, they were not required to pay any part of the OFT’s costs. There was no order as to costs, including as between the claimants and the interested parties.