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

An application to vary or discharge a warrant under paragraph 9.1 of the Practice Direction is an on the merits review of the original ex parte decision, not a de novo rehearing or ordinary judicial review. The question is whether the warrant was correctly granted when it was issued.

The applicant must explain why the warrant should be varied or discharged. However, where relevant material is protected by public interest immunity, the court and the authority must ensure that the closed material procedure fairly addresses points which the applicant cannot make. New evidence may illuminate the position at the original date, but cannot rely solely on subsequent events.

The Competition and Markets Authority obtained a warrant under section 28 of the Competition Act 1998 against Concordia International Rx (UK) Ltd. The warrant concerned documents relating to investigations into suspected anti-competitive conduct involving Carbimazole and Hydrocortisone.

Concordia applied to discharge or vary the warrant, arguing that the statutory requirements had not been met and that the CMA had failed to disclose the extent of its earlier compliance with an agreed document-retrieval methodology. The application also required consideration of material protected by public interest immunity and the procedure for reviewing a section 28 warrant.

1. Procedure. An application under paragraph 9.1 of the Practice Direction is an on-the-merits review of the original ex parte decision. It is not a de novo rehearing and is not judicial review. The relevant question is whether the statutory conditions were satisfied when the warrant was sought and granted.
2. Burden and closed material. Because the warrant-holder makes the application, it must articulate why the warrant should be varied or discharged. The intrusive nature of the warrant and the possible presence of public-interest-immunity material require the judge to examine whether the statutory tests were met. Where the applicant cannot address material withheld from it, the authority and the court must take up that burden through a closed material procedure.
3. Statutory categories. A section 28 warrant may be based on reasonable grounds for suspecting non-compliance with a production requirement under section 28(1)(a); reasonable grounds for suspecting that responsive documents would be concealed, removed, tampered with or destroyed under section 28(1)(b); or a thwarted attempt to enter premises under section 28(1)(c). The statutory tests are assessed at the time of the original application. Further evidence may address that original position, but later events cannot demonstrate that the original decision was wrong.
4. Application. The evidence, including the protected material, justified the conclusion that the agreed retrieval methodology was too narrow as to document types and custodians. There were reasonable grounds to suspect that relevant documents remained on Concordia’s premises and that a further production demand might lead to concealment, removal, tampering or destruction. The case was therefore properly a section 28(1)(b) case, rather than a section 28(1)(a) case based on non-compliance with earlier notices.
5. Disposition. Concordia’s application to discharge or vary the warrant was dismissed.

This was a first-instance application to vary or discharge a warrant granted by Mann J under section 28 of the Competition Act 1998. The judgment also referred to an earlier procedural judgment in the same proceedings, [2018] EWHC 3448 (Ch).