R (Gallaher Group Ltd) v Competition and Markets Authority

Subject Matter

COMPETITION — Restriction or distortion of competition — Agreements, decisions and concerted practices — Defendant investigating practices of producers and retailers of tobacco products — Claimants entering into early resolution agreements accepting liability for infringements in return for reduced financial penalties — Defendant giving assurances to third party that if it entered into early resolution agreement any penalties would be refunded should appeals by others be allowed — Similar assurances not offered to claimants — Defendant’s case on liability subsequently proving unsustainable following appeals — Defendant honouring assurance to third party but refusing repayment of penalties levied to claimants — Whether difference in treatment breaching defendant’s duties of fairness and equal treatment — Whether claimants entitled to repayment

[2016] EWCA Civ 719; [2016] Bus LR 1200; The Times, 22 September 2016; [2016] WLR (D) 394, CA

COMPETITION — Restriction or distortion of competition — Agreements, decisions and concerted practices — Defendant investigating practices of producers and retailers of tobacco products — Claimants entering into early resolution agreements accepting liability in return for reduced financial penalties — Defendant’s case on liability subsequently proving unsustainable — Claimants seeking repayment of penalties following payment by defendant to third party retailer entering into early resolution agreement — Defendant refusing — Whether difference in treatment breaching defendant’s duties of fairness and equal treatment — Whether claimants entitled to repayment

[2015] EWHC 84 (Admin); [2015] CN 161; [2015] UKCLR 209, QBD

COMPETITION — Breach of competition law — Penalty — Defendant competition authority investigating practices of producers and retailers of tobacco products — Claimants and third party retailer entering into early resolution agreements accepting liability for infringements in return for reduced financial penalties — Defendant giving assurances to third party retailer that penalties would be refunded should appeals by other parties be allowed — Claimants not receiving similar assurances — Defendant honouring assurances to third party retailer following successful appeals — Defendant refusing to refund penalties paid by claimants — Whether inequality of treatment and unfairness grounds for review of defendant’s decision — Whether unequal treatment irrational

[2018] UKSC 25; [2019] AC 96; [2018] 2 WLR 1583; [2018] Bus LR 1313; [2018] 4 All ER 183; [2018] WLR (D) 300; Case details, SC(E)

Appellate History

Commentary

Public Law for Everyone
Consistency as a free-standing principle of administrative law? Case comment

Monckton Chambers
Two wrongs don’t make a right or Public law orthodoxy rules again Case comment

UK Human Rights Blog
Supreme Court: unfairness/equal treatment only an aspect of irrationality Case comment

New Law Journal
Unravelling (un)fairness (2018) 168 NLJ 7820, p 13

Blackstones Civil Practice 2023
Grounds of Judicial Review - Irrationality - Abuse of power/substantive legitimate expectation 77.19

Grounds of Judicial Review - Irrationality - Administrative consistency 77.21