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You are here: BAILII >> Databases >> United Kingdom Competition Appeals Tribunal >> BMI Healthcare Ltd v Competition Commission [2014] CAT 1 (16 January 2014) URL: http://www.bailii.org/uk/cases/CAT/2014/1.html Cite as: [2014] CAT 1 |
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Case Number: 1218/6/8/13
Neutral Citation Number [2014] CAT 1
IN THE COMPETITION
APPEAL TRIBUNAL
16 January 2014
Applicant
Respondent
THE PARTIES' SUBMISSIONS
(1) BMI's application succeeded and BMI achieved the relief that it sought, the Tribunal having rejected, in "trenchant terms", the Commission's defence of the application.
(2) BMI was unable to vindicate its rights other than by applying to the Tribunal, having been unsuccessful in its efforts to address the matter directly with the Commission.
(3) In addition to compensating BMI for its losses, an order that the Commission pay BMI's costs would "help to deter the Commission from taking, adhering to and defending such a fundamentally flawed decision again in the future" (paragraph 3(4) of BMI's application for costs).
(4) The costs incurred by BMI are reasonable. In particular, BMI was justified in using City solicitors in relation to specialist proceedings of this nature, and the case was subject to unusual expedition, which inevitably increased BMI's costs at a time when other lawyers were engaged on other aspects of the Commission's investigation. Further, whilst BMI's counsel were prepared to deal with the application at the hearing on 20 September 2013, the Commission's attitude led to the proceedings being more detailed and complicated than they might otherwise have been.
(5) BMI assumed the lead role as between the three applicants.
(1) All the relevant circumstances must be considered when making an award of costs, including success or failure on particular issues, whether the costs were proportionately and reasonably incurred and were proportionate and reasonable in amount, and having regard to the importance of the matter to the parties, the complexity of the matter and the time spent on the case.
(2) BMI did not prevail on every issue. In particular, although the Tribunal ruled that various aspects of the disclosure room arrangements were unlawful, it found that the Commission was entitled to protect the relevant information by way of a disclosure room (paragraph 49 of the Judgment). The Tribunal also rejected BMI's arguments made in relation to the "adviser disqualification" requirement (paragraphs 76 to 78 of the Judgment).
(3) The level of costs claimed by BMI is excessive and disproportionate, given that its Notice of Application was not long or complex, and the proceedings were limited to points of principle only, with few documents in issue. A total of 1.5 days were spent in court and the proceedings lasted little more than two weeks in total.
(4) The amount claimed by BMI is four and a half times greater (adjusting for VAT) than the costs incurred by the Commission in defending three applications.
THE TRIBUNAL'S ANALYSIS AND CONCLUSIONS
ORDER
Marcus Smith Q.C. |
William Allan |
Margot Daly |
Charles Dhanowa O.B.E., Q.C. (Hon) Registrar |
Date: 16 January 2014 |
Date: 16 January 2014 |
Note 1 In a letter sent to the Registrar on 13 December 2013, BMI confirmed that it was not in a position to recover, as input tax pursuant to section 24 of the Value Added Tax Act 1994, VAT on legal costs and disbursements. [Back]