5 Essex Court


28 Jan 19 Back to Listing

Jason Beer QC and Charlotte Ventham successful for the Competition and Markets Authority in a series of challenges to a search warrant

A long running challenge to a search warrant obtained by the competition regulator reached its conclusion in the High Court this month.

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

In October 2017, the CMA obtained a warrant to enter and search the business premises of a pharmaceutical company, Concordia, as part of an investigation into suspected anti-competitive practices in the industry. The application was supported by certain confidential material.

In the first ever application to vary or discharge a warrant issued pursuant to s28 of the Competition Act 1998, Concordia challenged the scope of the warrant.

The proceedings resulted, first, in an anterior point of principle being resolved by the Court of Appeal concerning the use of material subject to public interest immunity (“PII”). The Court held that on the making of an ex parte application for a warrant, the Court may rely upon material which cannot be disclosed to the subject of the warrant on the grounds of PII and that, in such circumstances, the Court would be required to operate a closed material procedure in order to determine any subsequent challenge to the warrant, whereby the Court would consider the PII material which was withheld from the subject of the warrant.

The Court of Appeal’s judgment is here.

With that issue of principle resolved, the case returned to the High Court for determination of the challenge itself. A series of hearings followed:

  • HHJ Matthews (sitting as a Judge of the High Court) initially ruled that a special advocate should not be appointed in connection with the challenge. The judgment is here.
  • Next, Marcus Smith J ruled that evidence relevant to the challenge was subject to PII and would be considered in a closed material proceeding on the substantive challenge. The judgment is here.
  • Finally, Marcus Smith J dismissed Concordia’s substantive application to vary the warrant. The judge rejected Concordia’s argument that the CMA had no reasonable basis for seeking a warrant at an advanced stage in investigations concerning Concordia. The judge concluded that the warrant was justified on the basis of the evidence which he had found was subject to PII and which Concordia had not seen. The judgment is here.