The Court of Appeal has overturned the CAT’s judgment on issues of due process in Allergan PLC & Ors v The Competition and Markets Authority. In a judgment published openly in March 2024, the CAT set aside the CMA decision that there was an unlawful market sharing agreement in relation to 10mg hydrocortisone tablets on the basis that the CMA had failed fully to put its case to certain witnesses at trial. The Court of Appeal, however, endorsed the cross-examination by CMA counsel as demonstrating “precisely how a case of anti-competitive conduct can and should be put to a recalcitrant witness”. It also found that the procedure adopted by the CAT after the trial was inappropriate and unjust in all of the circumstances of the case.
Jon Turner KC and Daisy Mackersie acted for the Appellants (the CMA), instructed by the Legal Department of the Competition and Markets Authority.
Mark Brealey KC acted for the Advanz Defendant/Respondent Group (Advanz – A2 to A5), instructed by Morgan Lewis & Bockius LLP.
The judgment is available here.