Competition and Markets Authority v Various Unnamed Defendants

A warrant under section 28 of the Competition Act 1998 may be issued where the court has reasonable grounds for suspecting both that relevant documents are on the premises and that, if production were required, they would be concealed, removed, tampered with or destroyed. The court may draw a reasonable inference from the suspected cartel activity and the nature of the documents. The warrant is an intrusive power, requiring an evidence-based application to the High Court and full and frank disclosure by the applicant. Documents include information recorded in any form and may include electronic devices.

The Competition and Markets Authority applied without notice for warrants to search six business premises under section 28 of the Competition Act 1998. The applications concerned a civil competition-law investigation into suspected anti-competitive conduct in the demolition industry. The CMA relied on evidence from its officers and identified information sources. The central questions were whether the statutory conditions for issuing the warrants were satisfied and whether any other reason prevented their grant.

The judgment also recorded the procedural approach to challenges to section 28 warrants, including the treatment of material subject to public interest immunity, as explained by the Court of Appeal in Competition and Markets Authority v Concordia International RX (UK) Limited [2018] EWCA Civ 1881.

1. Warrants granted. The court granted the six warrants in the terms sought under section 28 of the Competition Act 1998.
2. First condition. Section 28(1)(b) required reasonable grounds for suspecting that documents which the CMA could require under section 26 were on the premises. The evidence provided reasonable grounds for suspecting the anti-competitive conduct, the involvement of persons within the suspect undertakings, that relevant conduct would be documented, and that relevant documents would be located at the premises. The first condition was therefore satisfied.
3. Second condition. The court also had to have reasonable grounds for suspecting that, if the documents were required to be produced, they would instead be concealed, removed, tampered with or destroyed. Given the suspected cartel and the nature of the documents, it was a safe and reasonable inference that those involved would seek to keep their involvement secret and would not produce the documents. The second condition was satisfied.
4. Documents and search powers. A document under section 59(1) was a widely drawn concept encompassing information recorded in any form. The statutory powers under sections 28(2) and 28(3) included entering and searching premises, copying documents and, in defined circumstances, taking possession of them. Additional powers under section 50 of the Criminal Justice and Police Act 2001 could be exercised once the CMA was lawfully present.
5. Disclosure and procedural safeguards. Because the application was made ex parte, the CMA owed a duty of full and frank disclosure. The approach to an inter partes challenge should follow the comparable regime under section 8 of the Police and Criminal Evidence Act 1984, including consideration of the whole evidential basis for the warrant, subject to public interest immunity. The court found no other reason not to grant the warrants.

First-instance decision. No prior appellate decision is stated in the judgment.