Ryanair Holdings Plc v Office of Fair Trading & Anor

Rule 61(2) of the Competition Appeal Tribunal Rules 2003 gives a broad, free-standing power to direct the suspension of a statutory time limit. The power is available where suspension is necessary and urgent to protect the public interest. Avoiding likely waste and duplication of regulatory investigations while an appeal may invalidate the reference can satisfy that test. The rule provides the applicable framework, without needing to apply the general interim-relief tests in American Cyanamid or Genzyme.

Ryanair held just under 30 per cent of Aer Lingus and the Office of Fair Trading investigated whether its acquisition created a relevant merger situation under the Enterprise Act 2002. The OFT decided that its investigation remained in time. The Competition Appeal Tribunal upheld that preliminary decision in [2011] CAT 23, and Ryanair appealed to the Court of Appeal.

Before the substantive appeal was heard, Ryanair sought an interim order suspending the statutory time limit so that the OFT would not have to refer the matter to the Competition Commission while the appeal remained unresolved. The central questions were whether the court had jurisdiction to suspend time and, if so, whether the statutory conditions and discretionary requirements were satisfied.

Lord Justice Lloyd gave the judgment, with Lord Justices Elias and Kitchin agreeing. The interim application was granted and the running of time under section 122, or section 24 if relevant, was suspended pending determination of Ryanair’s appeal.

1. Jurisdiction. Under section 15(3) of the Senior Courts Act 1981 and CPR rules 52.10(1) and 52.1(3)(c), the Court of Appeal possessed the powers available to the Competition Appeal Tribunal in relation to, and incidentally to, the appeal.
2. Rule 61(2). Rule 61(2) of the Competition Appeal Tribunal Rules 2003 was a free-standing provision. The reference to directions was not confined to instructions requiring a person to act or refrain from acting. It was wide enough to include a direction at large suspending the running of statutory time. The rule’s wording and statutory source justified that interpretation.
3. Conditions. Rule 61(2) required necessity, urgency and one of the specified protective purposes: preventing serious irreparable damage to a person or category of persons, or protecting the public interest. The court did not accept that serious irreparable damage to Ryanair had been established. However, avoiding potentially wasted public resources and duplicated investigations by the OFT and Competition Commission was protection of the public interest. The imminent expiry of the time limit established urgency, and suspension was the only practical means of avoiding the identified waste.
4. Other powers. Rule 61(1)(a) did not apply because the running of time resulted from the underlying facts, rather than from the effect of the OFT’s preliminary decision. The court expressed doubt about the scope of rule 61(1)(c) and concluded that rules 19(1) and 19(2)(i) did not authorise alteration of statutory merger-reference time limits. The court did not determine whether rule 19(2)(j) could operate during pending Tribunal proceedings. Rule 61(2) supplied the sufficient framework, so it was unnecessary to choose between the approaches in American Cyanamid and Genzyme.
5. Terms. The order was made on the terms proposed by Ryanair and the OFT, including an undertaking in damages and preservation of the OFT’s powers under sections 71 and 72. The additional restrictions sought by Aer Lingus were unjustified.

1. Court of Appeal (Civil Division) — granted Ryanair’s interim application and suspended the relevant statutory time limit pending determination of the appeal: [2011] EWCA Civ 1579.
2. Competition Appeal Tribunal — upheld the OFT’s preliminary decision that its investigation was in time: [2011] CAT 23.