Competition and Markets Authority, R (on the application of the) v The Competition Appeal Tribunal

Identically worded statutory conditions for warrants should generally receive the same construction, whether the premises are business or domestic premises. The domestic setting may affect the factual assessment and the Article 8 balancing exercise, but it does not create an automatic requirement for additional evidence of an individual’s propensity to destroy documents. A tribunal cannot designate its judgments as citable guideline judgments in courts or tribunals beyond its own jurisdiction. Where no challenge to a warrant or request for further information has been made, it has no power of its own motion to compel disclosure of supporting material or initiate a public-interest-immunity exercise.

The Competition and Markets Authority sought judicial review of three decisions of the Competition Appeal Tribunal concerning warrants under sections 28 and 28A of the Competition Act 1998. The CAT granted warrants for business premises but refused a warrant for domestic premises, holding that a secret-cartel inference was insufficient without further evidence of an individual’s propensity to destroy documents.

The CMA also challenged the CAT’s designation of the warrants judgment and an earlier High Court judgment as guideline judgments, and an order requiring identification and disclosure of material potentially subject to public interest immunity. The rolled-up hearing concerned permission, jurisdiction, the merits and appropriate relief.

1. Jurisdiction and forum. The High Court and Court of Session had concurrent supervisory jurisdiction over the CAT as a UK-wide tribunal. Applying Tehrani, the High Court was the more appropriate forum because the grounds were interconnected, concerned English authorities and raised no distinct issue of Scottish law. Rule 18 of the CAT Rules did not govern the judicial review because the warrant applications were not appeals and the present proceedings were not an appeal.
2. Domestic-premises warrants. The CAT erred in law by treating additional evidence of an individual’s propensity to destroy documents as invariably necessary under section 28A(1)(b)(ii). Whether the inference arising from a suspected secret cartel is sufficient depends on the facts, including the individual’s position and involvement. The domestic context may require more careful scrutiny and an Article 8 balancing exercise, but does not justify a different automatic statutory test. The warrants judgment should not be followed as a guideline judgment.
3. Status of the judgments. The CAT exceeded its powers by purporting to determine that its judgments, and the 2019 High Court judgment, could be cited in any court or tribunal. In any event, both judgments contained errors of law and should not be treated as guideline judgments. The absence of the express statement contemplated by paragraph 6.1 of the 2001 Practice Direction would not, by itself, have been decisive.
4. Disclosure and PII. Under Concordia, the definitive public-interest-immunity exercise is ordinarily undertaken when the warrant is challenged, not pre-emptively at the ex parte stage. A subject may seek further information under the Bangs procedure. Without a request or an intimated challenge, the CAT had no power of its own motion to order disclosure or publication of supporting material. The order of 8 December 2023 therefore exceeded its powers. The principles in Haralambous permit consideration of PII material under a closed procedure where a warrant is challenged.
5. The CMA was granted permission and declarations were proposed concerning each ground. Consequential submissions, including on costs, were invited before finalisation of the order.

First instance judicial review. The CAT decisions challenged were its warrants judgment dated 17 October 2023, publication judgment dated 6 November 2023 and order dated 8 December 2023.