Linklaters advises Compare the Market on successful appeal of CMA Decision before the UK Competition Appeal Tribunal
Linklaters advised Compare the Market (“CtM”) on its successful appeal before the Competition Appeal Tribunal (“CAT”) of a decision by the UK Competition and Markets Authority. The decision had held that CtM’s historic use of wide most favoured nation clauses (“wMFNs”) in its contracts with certain home insurance partners infringed competition law, and imposed a penalty of £17.9m.
In a unanimous judgment published on 8 August 2022, the CAT upheld CtM’s appeal on five of the six substantive grounds advanced before the Tribunal, thereby overturning both the decision and the penalty imposed. In particular, the CAT held that the market definition adopted by the CMA in the decision was flawed and that the CMA had failed to show that CtM’s wMFNs had the anti-competitive effects alleged in the decision. The CMA has until 16 September 2022 to apply for permission to appeal the CAT’s judgment.
A cross-practice team was led by AFIG partner Nicole Kar, and Dispute Resolution partner Tom Cassels, assisted by managing associate Haidee Barratt and associate Benjamin Sidbury. TLT LLP, Oxera Consulting LLP and Monckton Chambers also advised.
A link to the CAT’s judgment can be found here: CAT Judgment (catribunal.org.uk)
This is the latest decision highlighting Linklaters’ work in the competition litigation space. Alongside our work for CtM, Linklaters are acting in relation to two separate appeals of CMA decisions made pursuant to the Competition Act 1998 in the pharmaceuticals sector, with trials in the Hydrocortisone and Liothyronine proceedings set to take place in Autumn this year. Our partners have also been involved in eight appeals of merger decisions of the CMA or its predecessors before the CAT in recent years, including obtaining the first-ever withdrawal and remittal of a Phase 2 merger decision in the CMA era, and the first-ever successful interim challenge to the CMA’s procedure in Sainsbury’s/Asda in 2018. We also have strong experience in regulatory appeals including representing Anglian Water and Northumbrian Water in the CMA’s redetermination of their PR19 price controls and SGN, NGN and WWU in their appeal of Ofgem’s GD2 price controls.
