Jason Beer QC and Charlotte Ventham act for the Competition and Markets Authority in a challenge concerning the reliance on PII material to defend a warrant
Judgment was handed down today by Marcus Smith J in the case of CMA v Concordia International RX (UK) Ltd  EWHC 2911 (Ch). The judgment addresses a point of principle arising in the context of (the first ever) application to vary or discharge a warrant issued pursuant to s28 of the Competition Act 1998.
The CMA successfully applied for a warrant on the basis that there were reasonable grounds for suspecting that there were on Concordia’s business premises documents relevant to the CMA’s investigation into suspected anti-competitive activity and that if such documents were required to be produced, they would be concealed, removed, tampered with or destroyed.
Concordia sought to vary or discharge the warrant. Today’s judgment addresses an anterior point of principle which had been identified by the Court: whether an application to vary/discharge must be determined with or without reliance upon material withheld from the applicant on grounds of public interest immunity.
The CMA argued that such an application should be approached in line with the principles applicable in comparable regimes (in particular, s8 PACE warrants) as set out by the Divisional Court in R (Haralambous) v Chief Constable of Hertfordshire  1 WLR 3073. In particular, the CMA submitted that the requirement to disclose highly sensitive material obtained in the context of an investigation (which would ordinarily attract public interest immunity), or alternatively to withdraw reliance upon such material in the event of a challenge to the warrant, would significantly undermine the public interest in the CMA’s ability to operate an effective competition enforcement regime.
Marcus Smith J ruled that an application to vary or discharge a warrant involved a re-hearing at which material held by the Court to be subject to PII could not be taken into account, despite the fact that it may have been relied upon to justify the issuing of the warrant in the first place. In so concluding, he considered that Haralambous (in which argument was heard by the Supreme Court on 8th November 2017) was distinguishable.
The judge granted permission to the CMA to appeal to the Court of Appeal and indicated his intention to bring the judgment in this case to the attention of the Supreme Court so that it may be taken into account before their judgment is delivered in Haralambous.
The judgment can be found here.