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7 Aug 18 Back to Listing

The use of PII material in search warrant cases: Jason Beer QC and Charlotte Ventham successful for the Competition and Markets Authority in the Court of Appeal

Judgment was handed down today by the Court of Appeal in Competition and Markets Authority v Concordia International RX (UK) Ltd [2018] EWCA Civ 1881. The judgment extends the reach of the Supreme Court’s judgment in R (Haralambous) v Chief Constable of Hertfordshire [2018] 2 WLR 357 (see here) beyond the s8 PACE regime to the provisions governing the obtaining of search warrants under the Competition Act 1998.

The CMA successfully applied for a search 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 in the first ever application of its kind under the Competition Act. At first instance, Marcus Smith J distinguished Haralambous (at that stage decided by the Divisional Court), holding 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: to read Marcus Smith J’s judgment, see here.

However, with the benefit of the Supreme Court’s judgment in Haralambous, the Court of Appeal today overturned that decision, agreeing with the CMA that such an application should be approached in line with the principles applicable in the comparable s8 PACE regime. Accordingly, the Court could have regard, in determining a challenge to the warrant, to the entirety of the evidence on the basis of which the warrant was granted, including evidence which is subject to PII at the inter partes stage. Such a course would not amount to an impermissible closed material procedure.

The Court further rejected Concordia’s submission (on its cross appeal) that the PII material could be disclosed into a confidentiality ring compromised of Concordia’s external lawyers.

The judgment can be found here.

Jason Beer QC, Rob Williams (of Monckton Chambers) and Charlotte Ventham act for the CMA.