CAT orders cost capping in first subsidy control case

23 Mar 2023

In the first appeal brought under section 70 of Subsidy Control Act 2022 (the “2022 Act”), the President of the Competition Appeal Tribunal has ordered that any costs award in favour of Appellant be capped at £60,000 and any costs award in favour of the Respondent be capped at £50,000: The Durham Company Limited v Durham County Council [2023] CAT 14.

The President indicated that subsidy control cases should be seen through the lens of the Tribunal’s “fast track” procedure, regardless of whether any formal order is made under rule 58.

The Appellant supported a cost capping order (having initially sought an order for cost budgeting). The Respondent local authority accepted that the Tribunal had jurisdiction to make a cost capping order, but had argued that the Tribunal ought to approach its discretion in accordance with the Corner House principles applicable in High Court judicial review cases. Those principles would not be satisfied in this case because the Appellant has a private interest in the outcome of the proceedings.

The President held that the Tribunal’s jurisdiction to impose cost capping in such cases arises under its general cost management power in rule 19(2)(r), not the cost capping provisions of rule 58. He further confirmed that, while section 70(5) of the 2022 Act requires the Tribunal to approach the substance of a subsidy appeal applying the same principles as would be applied on a judicial review, that did not import all of the associated procedures of the High Court. The Tribunal will, instead, apply its own, more flexible, rules and procedures.

Consistent with the Tribunal’s aim to keep subsidy control appeal “fast, cheap and simple”, a hearing of the appeal (filed on 3 February 2023) has been listed on 3 and 4 July 2023.

Michael Bowsher KC and Ligia Osepciu (instructed by Tilly, Bailey and Irvine LLP) represent the Appellant, The Durham Company.