Court of Appeal reinstates CMA
hydrocortisone fines
The Court of Appeal has upheld an
appeal against a judgment by the Competition Appeal Tribunal (CAT) that
overturned around £100 million in fines two drugs manufacturers, describing the
CAT procedure as “inappropriate” and “unjust”.
In September 2023, the CAT upheld
the CMA's findings that Auden/Actavis UK had reached agreements with
AMCo/Advanz to delay the entry of their own 10mg hydrocortisone tablets, in
breach of the Chapter I prohibition under the Competition Act 1998. However,
the CAT raised concerns about due process, relating to the CMA's failure fully
to cross-examine Advanz's witnesses. It, therefore, held a further hearing to
consider this issue.
In March 2024, the CAT found that
the CMA had breached due process, rendering the substantive findings on cartel
infringements as set out in the September 2023 judgment unsafe.
The Court of Appeal allowed the
CMA's appeal against this ruling, finding that the CAT had erred in assuming
that the CMA’s case involved allegations of dishonesty or misconduct and that
these matters were not properly put to witnesses.
The CAT should have dismissed the
companies' appeals without requiring the CMA to cross-examine a witness on
dishonesty or misconduct. It was inappropriate and unjust for the CAT to
deliver a provisional judgment and adjourn for a further due process hearing
Allergan plc, Amidpharm UK Ltd,
Amidpharm UK Ltd, Advanz Pharma Services (UK) Ltd, Advanz Pharma Corp Ltd,
Cinven (Luxco 1) S.a.rl and others, Auden Mckenzie (Pharma) Limited and
Accord-UK Limited v Competition and Markets Authority [2024] EWCA Civ 1023
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