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Public interest immunity material cannot be disclosed on an application to challenge a warrant

9 August 2018

Public interest immunity material cannot be disclosed on an application to challenge a warrant

By Suzanne Rab

The Court of Appeal has allowed an appeal by the Competition and Markets Authority (CMA) against a High Court ruling that required the CMA to disclose evidence that was not protected by public interest immunity (PII) to a party seeking to vary a warrant granted to the CMA under section 28 of the Competition Act 1998.

The warrant in question relates to the CMA’s investigation of possible infringements of competition law by Concordia International RX.

The High Court had held that a judge on an application to challenge a warrant could not take into account material protected by PII even where the judge who issued the warrant had properly taken it into account.  The High Court ruled that PII issues should be addressed at the initial ex parte hearing and that a confidentiality ring could not be used to disclose PII material.

In light of the Supreme Court judgment in Haralambous in January 2018, Concordia accepted that the CMA can use PII material to support its case for a warrant. 

The Court of Appeal departed from the High Court and ruled that the appropriate time for the court to rule definitively on PII is when the application is made by the subject of the warrant for it to be set aside or varied.  The Court of Appeal confirmed that the use of a confidentiality ring in relation to the challenging of warrants in competition cases has no place in relation to PII material.

It is now for the CMA to make submissions to the High Court that the evidence it relied on to obtain the warrant qualifies for PII protection.  The High Court will decide whether the grant of the warrant was correct.  This will determine whether the CMA can continue to rely on the material in its ongoing investigation without disclosing it.

The Competition and Markets Authority v Concordia International RX (UK) [2018] EWCA Civ 1881

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