Challenges to warrants obtained under Section 28

16 Nov 2017


On 5 October 2017, the CMA was granted ex parte a warrant under section 28 Competition Act 1998 to search the premises of the pharmaceutical company, Concordia. The basis upon which the warrant was obtained was that there was a risk that documents relevant to an investigation would be destroyed or concealed (section 28(1)(b)(ii)).

The warrant was in relation to an investigation concerning inter alia the drug hydrocortisone. The CMA had been investigating Concordia in respect of an alleged anti-competitive agreement in respect of this drug since April 2016 and had previously served section 26 Notices on Concordia to obtain information. Concordia sought to have the warrant discharged on the basis that there could be no reasonable grounds for suspecting that any documents relating to the investigation would be destroyed or concealed.

The warrant was obtained in part by relying on information which the CMA said was protected by public interest immunity. The issue arose as to whether the CMA could rely on that material for the purposes of Concordia’s challenge to the warrant but not disclose it to Concordia. The CMA relied on authorities relating to criminal warrants which it said supported that approach.

Mr Justice Marcus Smith ruled that such a process would be unfair to Concordia and “would constitute the sort of “closed material” process that (according to the Supreme Court in Al Rawi) ought only to be sanctioned by Parliament.” He distinguished the approach taken to criminal warrants. Consequently, in so far as material was upheld as being subject to PII, it could not be relied on by the CMA at the inter partes hearing for the variation of the warrant. The Judge, agreeing with the CMA, also rejected a suggestion by Concordia that the CMA place the PII material into a confidential ring of external lawyers only.

The Judge made recommendations for the procedure to be adopted when the CMA applies ex parte for a warrant under section 28 and wishes to rely on PII material.

The Judge gave the CMA permission to appeal his decision to the Court of Appeal.

Mark Brealey QC acted for the Defendant, Rob Williams acted for the Claimant.

To read the judgment please click here.