HCA International Ltd v The Competition And Markets Authority

When an administrative decision is quashed, the matter should ordinarily be remitted to the same decision-maker. A fresh decision-maker is required where returning it would cause reasonably perceived unfairness to an affected party or damage public confidence in the decision-making process.

Actual bias, apparent bias or confirmation bias will ordinarily preclude remission to the original decision-maker. Earlier procedural unfairness is not sufficient by itself. It must support a reasonable conclusion that the decision-maker would or might act unfairly on reconsideration. Practical considerations, including cost, delay and the risk of error, may be considered only after questions of fairness and public confidence have been addressed.

The Competition and Markets Authority investigated privately funded healthcare services and decided that HCA International Ltd should divest two central London hospitals. It also found adverse effects on competition concerning insured patients. HCA sought review by the Competition Appeal Tribunal under section 179 of the Enterprise Act 2002.

After errors and procedural unfairness concerning the authority's insured-prices analysis were identified, the authority accepted that the insured adverse-effect and divestment decisions should be quashed. The Tribunal remitted those decisions to the original inquiry group and case team. It also reserved the costs of several outstanding grounds and excluded the costs of HCA's data-room review.

HCA appealed, principally contending that the investigation's mishandling, apparent bias, confirmation bias and damage to public confidence required reconsideration by a freshly constituted inquiry group.

1. Appeal dismissed unanimously. When a decision is quashed, remission should be to the same decision-maker unless that course would cause reasonably perceived unfairness to an affected party or damage public confidence in the decision-making process. The relevant considerations depend upon the circumstances and should not be reduced to an exhaustive list: paras 66–70.

2. Actual bias, apparent bias or confirmation bias would make remission to the original decision-maker undesirable. Each would involve reasonably perceived unfairness and could seriously damage public confidence. Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias: paras 70, 90–92.

3. The relevant unfairness is a contravention of the public law duty of fairness. Its content depends upon the circumstances, but what fairness requires is a question of law rather than an exercise of administrative discretion: paras 71–72.

4. The authority breached that duty by failing to tell HCA at the oral hearing that its insured-prices analysis had been revised. HCA was therefore making submissions on a basis which the authority knew had changed. The authority's email about another participant's data-room access was not, however, misleading, and the investigation as a whole had not been completely mishandled: paras 73–89.

5. That individual instance of unfairness did not establish apparent or confirmation bias. Nor did it justify a reasonable perception that the original inquiry group would act unfairly on reconsideration or damage public confidence. The group comprised experienced professionals without a personal interest in the outcome, had undertaken to approach the matter with an open mind, and had not conducted a wholly flawed investigation: paras 92–100.

6. Practical difficulties, cost, delay and risks of error associated with a new decision-maker were legitimate considerations. They could be addressed only after the primary questions of fairness, bias and public confidence had been determined: para 93.

7. Under rule 55(2) of the Competition Appeal Tribunal Rules 2003, the Tribunal could reserve costs relating to grounds which might remain useful in later proceedings. It also correctly excluded the data-room costs because those costs would have been incurred during a procedurally proper investigation in any event: paras 101–103.

1. Court of Appeal (Civil Division): The appeal was dismissed on the remission and costs issues. The court upheld remission to the original Competition and Markets Authority inquiry group and upheld both costs decisions: [2015] EWCA Civ 492.

2. Competition Appeal Tribunal: The Tribunal quashed the insured adverse-effect and divestment decisions and remitted them to the original inquiry group. It reserved the costs of grounds 2 to 5 and excluded the costs of HCA's data-room review. No neutral citation for the ruling is stated in the judgment.