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

When a court considers a challenge to a warrant and relevant material is protected by public interest immunity (PII), the material may be deployed through a closed material procedure without disclosure to the subject of the warrant. The court must recognise that this causes a greater impairment to the administration of justice than withholding the material from everyone, because one party can deploy material unavailable to the other. The PII balance must therefore require cogent protection arguments. The court must also consider whether redaction, disclosure of extracts, or a summary can protect the public interest. Once material is held to be protected by PII, a confidentiality ring is not an available substitute for the closed procedure.

The CMA obtained warrants under section 28 of the Competition Act 1998 against Concordia in connection with suspected anti-competitive conduct concerning pharmaceutical products. Concordia applied to discharge the warrant insofar as it concerned Carbimazole and Hydrocortisone. That application was listed for 19 December 2018.

This judgment determined the anterior issue whether Concordia could inspect confidential material relied upon when the warrant was obtained. The CMA asserted PII over parts of the application materials. The court considered the appropriate procedure for resolving the PII claim, including whether material could be disclosed through a confidentiality ring or another protective process.

1. Closed material procedure. The court held that, following R (Haralambous) v Crown Court at St Albans and the Court of Appeal’s decision in this litigation, a court may rely on PII material when issuing a section 28 warrant. On a subsequent challenge, the court must consider that material in a closed material procedure, without the subject or its representatives present.
2. PII balance. The court adopted the three-stage structure identified in R v Chief Constable of West Midlands Police, ex parte Wiley: relevance, harm to the public interest from disclosure, and the balance between disclosure and that harm. Because the material would be deployed against Concordia without its knowledge, the adverse effect on the administration of justice was greater than in a conventional case where material was withheld from everyone. The cogency of the PII case therefore had to be correspondingly stronger.
3. Alternative protection. The court was required to consider whether redaction, disclosure of extracts, or a summary could protect the public interest. However, once material was held to be protected by PII, a confidentiality ring could not be used to disclose it under a special protective process. The proper process was the closed material procedure.
4. Balancing factors. The court considered the importance of challenging an intrusive business-premises warrant, the effect of non-disclosure, the importance of the protected material, and the possibility of mitigation through judicial probing and the CMA’s duty of full and frank disclosure.
5. The name and position of the redacted deponent were not protected by PII and were ordered to be disclosed. The remaining PII redactions were protected and could not be disclosed in open proceedings.

The judgment records that an earlier decision in the same proceedings, [2017] EWHC 2911 (Ch), was overturned by the Court of Appeal in [2018] EWCA Civ 1881, following the Supreme Court’s decision in [2018] UKSC 1. This judgment determined the subsequent PII application.