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On 26 July 2007, the Competition Appeal Tribunal unanimously dismissed an appeal brought by a local newspaper proprietor, Mr. Brannigan, which challenged the OFT’s refusal to investigate a complaint under the Competition Act 1998.
Mr. Brannigan complained to the OFT that two rival publishers, Newsquest and Johnston Press had engaged in exclusionary practices contrary to the Chapter I and II prohibitions which had forced him out of the market in the East Sussex area. He claimed that Newsquest had threatened litigation, cancelled the printing slot for his publication, launched a “spoiler” free newspaper and had targeted Mr. Brannigan’s customers with selective discounts conditional on them advertising exclusively in Newsquest’s papers.
The OFT rejected Mr. Brannigan’s complaint on its administrative priorities but offered to reassess the complaint at a hearing on 26 April 2006, after the CAT refused to strike the case out. On re-assessment, the OFT rejected the complaint on the basis that there was no clear evidence of dominance or abuse. It also refused to investigate the complaint further for reasons of administrative priority. Mr. Brannigan appealed that rejection to the CAT, which dismissed his appeal against the decision on the grounds that on the facts available there was not enough evidence to suggest that the OFT had made any material error of law, fact or appraisal. As to the question of whether the OFT should have conducted further investigations, a decision by the OFT not to carry out an investigation under section 25 or to reject a complaint otherwise than on the grounds that there has been no infringement was a decision which could only be challenged before the Administrative Court, not the Tribunal.
Daniel Beard and Anneli Howard represented the OFT.
Jennifer Skilbeck and Ben Rayment assisted Brannigan pro bono at the preliminary stages of the appeal, who appeared in person at the hearing.
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Daniel Beard QC
Ben Rayment
Anneli Howard