The Competition and Markets Authority v Concordia International RX (UK) Ltd

The appointment of a special advocate in a non-statutory case is exceptional, never automatic, and a remedy of last resort. It is justified only where it is needed to restore fairness that cannot sufficiently be achieved by other means. The court should consider the seriousness of the issue, the nature of the procedure, the claimant’s duty of full and frank disclosure, the assistance the special advocate could provide, whether that assistance would involve a task inappropriate for the judge, and whether any other course could meet the requirements of fairness. Efficiency, novelty, complexity or the desirability of an additional pair of eyes is insufficient.

The Competition and Markets Authority sought a warrant under section 28 of the Competition Act 1998 to search the defendant’s business premises and seize relevant material. The defendant challenged the warrant in relation to two drugs and sought an invitation to the Attorney General to appoint a special advocate, because material subject to public interest immunity would not be disclosed to it.

The Court of Appeal had held on 7 August 2018 that a challenge to a section 28 warrant had to take account of all relevant material, including material subject to public interest immunity. The present application concerned whether fairness required a special advocate at the forthcoming public-interest-immunity and substantive warrant hearings.

1. Applicable test. The court held that, although it had power to invite the Attorney General to appoint a special advocate in a non-statutory case, the appointment was exceptional, never automatic and a matter of last resort. The court had to be satisfied that no other course would meet the requirement of fairness to the defendant. This approach was drawn from R v H [2004] 2 AC 134, R (on the application of Malik) v Manchester Crown Court & Anor [2008] EWHC 1362 (Admin) and Re A [2012] Fam 102.
2. The relevant considerations included the seriousness of the issue, the nature of the exercise, the claimant authority’s duty of full and frank disclosure, the extent to which a special advocate could further the absent party’s case, whether the special advocate could do something which it would be inappropriate for the judge to do, and whether any other course could satisfy fairness. The list was not exhaustive.
3. The issue was of moderate seriousness. The challenge concerned only part of the warrant, there was no evidence of actual damage, and no sanctions were being imposed. The warrant challenge was intended to be summary and relatively straightforward, although it could involve deciding whether the statutory conditions for issuing the warrant had been met.
4. The court found no material discrepancy in the evidence concerning the principal source of the warrant application. In any event, the alleged discrepancy was open and could be addressed by the defendant and considered by the judge at the substantive hearing. The special advocate’s assistance would otherwise be limited largely to testing the closed material. The judge could undertake the relevant assessment personally.
5. The novelty and complexity of the case, and the desirability of an additional pair of eyes, went to efficiency rather than necessity. The court was not satisfied that a special advocate was needed to restore fairness. The invitation was therefore declined. The claimant was awarded its costs of and occasioned by the special-advocate issue, with assessment deferred to a costs judge.

• Court of Appeal: On 7 August 2018, the Court of Appeal reversed Marcus Smith J and held that a challenge to a section 28 warrant had to take account of all relevant material, including material subject to public interest immunity.
• High Court (Chancery Division): The present court refused to invite the Attorney General to appoint a special advocate for the further hearings.