Held, appeal dismissed. (1) The degree of deference to be accorded by the tribunal to the CMA was fact and context specific. If the issue concerned the inferences to be drawn from statistical data, then the conclusions drawn by the tribunal might be as valid as those drawn by the CMA. At the other end of the scale, if the CMA evaluated a wide variety of complex evidence, not all of which is consistent, a broader margin will be accorded to the CMA in relation to its findings of fact and the inferences to be drawn therefrom. There may by circumstances where in evaluating the adequacy of a decision the tribunal necessarily adopts an analysis of its own. Such an approach did not imply that the tribunal was substituting its own judgment for that of the CMA. In the present case, the decision that the third party supplier could not negate the substantial lessening of competition brought about by the merger involved the evaluation of a disparate, and not entirely consistent body of evidence. The CMA had conducted an adequate fact finding exercise, had sufficient evidential support for its factual findings, and reached a conclusion on the degree of competitive constraint that was rational. Furthermore, the tribunal had not substituted its own view of the evidence in order to uphold the decision (paras 39–40, 54–55, 88, 132).

(2) It was undesirable for the court to lay down any canonical definition of “special” in section 39(3) of the Enterprise Act 2002. What amounted to “special” was fact and context specific. Special reasons were not limited to those which were exceptional or extraordinary. “Special” did not imply a requirement for some sort of external event, such that it precluded an extension due to internal features of an investigation even if extraordinary or exceptional or otherwise special. In large measure, complexity would be a feature of many cases and could often be overcome by the allocation by the CMA of additional administrative resource to a case and to that extent complexity would not always be a cause for an extension. Nonetheless, it was not the case that complexity could never, as a matter of law, amount to a special reason. Whether the reasons given were “special” was ultimately a matter for the tribunal, but it would take into account that Parliament had not sought to define what amounted to “special” which, when considered in conjunction with “if it considers”, accorded a relatively broad discretion upon the CMA. The decision involved a balancing of available resources against the nature and complexity of the work outstanding at any one particular time in the context of an appreciation by the CMA of the need to be as comprehensive, thorough and fair as it possibly could be within the tight timeframe imposed upon it by Parliament. While the parties were entitled to defend their position robustly, if that involved a decision not to make concessions or narrow the issues then a consequence might be to put the CMA under intense pressure of time and unable to complete its review fairly and thoroughly absent an extension. In the present case, the reasons given by the CMA fell within the broad umbrella of “special” and the CAT was correct to so conclude (paras 106–109, 112–113, 115–116, 117, 132).

Per curiam. The court had the discretion to determine whether a decision taken in breach of the relevant time limit was a nullity or not. In exercising this discretion, the court had to strike a balance between the private interests of commercial parties, who required a merger control regime which could operate expeditiously and with legal certainty, and the public interest of avoiding unnecessary restriction of commercial activity and preserving decisions intended to protect the integrity of competition in a market and consumers. While the absence of good faith might be a factor relevant to the exercise of the judicial discretion, the mere fact that the CMA’s decision was made in good faith did not prevent the court from quashing it (paras 128, 129, 130).