Court of Appeal rules against recovery of costs in successful antitrust appeal

Court of Appeal rules against recovery of costs in successful antitrust appeal

The Court of Appeal has found that it is not in the public interest for the Competition and Markets Authority (CMA) to pay the costs of a successful party in an appeal against a CMA decision.

The Court made its ruling in appeals by Pfizer and Flynn against the decision of the CMA fining them for abuse of dominance by charging excessive prices for phenytoin sodium capsules.

The CAT concluded that it was appropriate to award the parties a proportion of their costs to reflect their overall success.

The Court found that the CAT had erred in applying BT v Ofcom (a regulatory case where BT successfully challenged an Ofcom decision, but the CAT did not order Ofcom to pay costs).  The CAT had given no weight to the position of the CMA as a public authority carrying out public interest functions.

The Court found that the starting point is that no order for costs should be made against a regulator who has brought or defended proceedings in the CAT acting purely in its regulatory capacity.

The CAT decided not to remit the costs matter to the CAT and made no order as to costs in respect of the CAT proceedings.

Flynn Pharma Ltd and Flynn Pharma Holdings Ltd v Competition and Markets Authority [2020] EWCA Civ 617