The Competition And Markets Authority (CMA) v Concordia International RX (UK)

On an inter partes challenge to a search warrant, the court must consider all relevant material that supported its issue, including material protected by public interest immunity. It may do so through a closed material procedure. Public interest immunity need not be identified or adjudicated prospectively at the ex parte warrant hearing. That issue falls for determination if the warrant is later challenged.

Once material has been held to attract public interest immunity, it cannot be disclosed into a confidentiality ring. Such rings may protect commercially sensitive information, but they do not dilute immunity founded on the public interest. These principles apply to warrants under Competition Act 1998.

The CMA obtained a without-notice warrant under section 28(1)(b) of the Competition Act 1998 to search Concordia’s business premises during an investigation into alleged anti-competitive arrangements. Concordia applied to vary or discharge the warrant.

Marcus Smith J held that a challenge had to be determined without reliance on material withheld from Concordia on public interest immunity grounds. He also considered that public interest immunity and disclosure should be addressed at the original warrant hearing, and rejected a confidentiality ring for protected material.

Following Haralambous, the CMA appealed. Concordia sought permission, out of time, to cross-appeal the ruling on confidentiality rings. The central issues were the procedure for determining a warrant challenge and whether public interest immunity material could be disclosed to external lawyers in a confidentiality ring.

1. The CMA’s appeal was allowed. In light of R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, a court determining an application to vary or discharge a warrant under sections 28 and 28A of the Competition Act 1998 must consider all relevant material, including material protected by public interest immunity. A closed material procedure is available for that purpose. Excluding such material would create an unacceptable mismatch between the basis on which the warrant was issued and the basis on which it was reviewed.

2. The court rejected the judge’s proposed procedure for deciding public interest immunity at the ex parte stage. The definitive assessment of whether material attracts public interest immunity, and whether any disclosure is possible, should be made when the subject of the warrant applies to vary or discharge it. The sensitivity of material may change over time, so it cannot properly be pre-resolved when the warrant is sought.

3. The court granted Concordia an extension of time and permission to pursue its cross-appeal, but dismissed it. The court alone must adjudicate a public interest immunity claim by assessing the asserted public harm and balancing it against the harm to the interests of justice caused by non-disclosure. Once the court has held that material is protected by public interest immunity, the material cannot be disclosed, whether through a confidentiality ring or otherwise.

4. Confidentiality rings remain appropriate, where justified, for commercially sensitive or private information. They do not apply to material protected by public interest immunity. In a warrant challenge, protected material is instead scrutinised by the judge in closed proceedings from which the warrant’s target and its advisers are excluded. Appointment of a special advocate may be possible, but is exceptional and a last resort.

• Court of Appeal (Civil Division): The CMA’s appeal was allowed. The court held that a closed material procedure may be used when determining a challenge to a warrant under the Competition Act 1998. Concordia’s late cross-appeal was permitted but dismissed: [2018] EWCA Civ 1881 .
• High Court, Chancery Division, Competition List: Marcus Smith J held that the warrant challenge had to be determined without relying on material withheld on public interest immunity grounds, and rejected a confidentiality ring for such material: [2017] EWHC 2911 (Ch) .