The High Court has banned the Competition and Markets Authority from relying on undisclosed evidence in a challenge by Concordia against a CMA search warrant

High Court prevents CMA from using redacted evidence in Concordia’s challenge to search warrant

The search warrant was issued under section 28 of the Competition Act 1998 and related to documents concerning suspected anti-competitive conduct in the UK Carbimazole and Hydrocortizone markets.

The CMA launched its investigation into the Hydrocortizone market in April 2016.  In March 2017 it issued a statement of objections alleging that Concordia and Actavis UK had infringed EU and UK competition law by entering anti-competitive agreements between 2013 and 2016.

Concordia applied to have the section 28 warrant varied and challenged it on the basis that the additional material relied on by the CMA to justify the use of the warrant be disclosed.  The CMA sought to justify non-disclosure on the basis of the public interest.

The High Court observed that this was the first challenge to a section 28 warrant and it must be determined on a case-by-case basis whether or not information is protected from disclosure.  It ordered that the information be disclosed to the Court, subject to redactions on grounds of public interest and relevance.  The CMA was also required to set out the ‘gist’ of the redacted material in an affidavit.

The case is something of a test case and may make the CMA more cautious in relying on wide public interest claims to justify its warrant process in competition cases. 

The Competition and Markets Authority v Concordia International RX (UK) Limited [2017] EWHC 2911