Court of Appeal says that CMA made 'wrong turning' but allows for remittal to same inquiry group

Court of Appeal says that CMA made ‘wrong turning’ but allows for remittal to same inquiry group

The Court of Appeal has ruled that the original CMA inquiry group in the investigation into the private healthcare market can reconsider the matter afresh.  The Court dismissed a challenge brought by HCA alleging among other matters that the remittal to the same group was unlawful.

The Court’s judgment turns on its interpretation of the legal concept of apparent bias where the issue is whether a fair-minded and informed observer would conclude that there was a real possibility that the CMA’s inquiry group is or was biased such that remittal to it was inappropriate.  The Court said no and did not consider that the remittal to the same inquiry group would cause reasonably perceived unfairness to HCA or damage public confidence in the CMA’s decision-making process.

Despite finding against HCA on the issue of apparent bias, it is of note that the CMA did not emerge with glory in this case as shown by the tone of the judgment.  While this does not obviously change the result the following paragraphs are noteworthy (emphasis added):

“It is undoubted that in the colloquial sense that I have referred to, HCA could properly have regarded the inquiry group’s conduct in keeping quiet in a sphinx-like manner at that hearing as unfair to HCA. Moreover, in my judgment, the conduct was also a breach of the CMA’s public duty of fairness, since it meant that HCA was making its submissions on a basis that the CMA hearing them knew had changed. But it is also plain that a single instance of unfairness will not automatically lead to the need to remit to a fresh decision maker. It is the starting point of the debate, not the end point.” [¶ 78]

“I also do not accept Mr Witcomb’s purported justification of his failure to tell HCA at the oral hearing about the revised IPA. In paragraph 47 of his 3rd statement, Mr Witcomb suggests that the inquiry group was going through a mechanical process in allowing HCA’s experts to repeat the points they had made in writing. But that sees the matter entirely from the CMA’s end of the telescope. Fairness is a two-way street. HCA would have been justifiably aggrieved by the later discovery that the basis of the IPA it was addressing had been changed, albeit that those changes were largely responsive to the submissions it and others had made.” [¶ 81]

“…They took one wrong turning but that does not make it reasonable to perceive they would  do the same again.” [¶97]

The CMA expects to publish its provisional findings in September.

 

HCA International Ltd v The Competition And Markets Authority [2015] EWCA Civ 492