Guernsey Royal Court sets aside Guernsey Competition and Regulatory Authority decision on post-partnership restrictions on doctors’ practice

15 Mar 2023

In the first judgment on an appeal against an infringement and penalty decision by the Guernsey Competition and Regulatory Authority (“GCRA”) under the Competition (Guernsey) Ordinance 2012, the Royal Court has set the decision aside, finding that it was unreasonable and based on material errors as to the facts. The Royal Court also set out the approach that it will take to appeals against GCRA decisions under the 2012 Ordinance.

The 2012 Ordinance is modelled on UK and EU competition law. The GCRA’s decision concerned the Medical Specialist Group (“MSG”), the partnership of specialist medical practitioners operating in Guernsey as part of its public health system. Doctors practising as associates or partners of the MSG agreed restrictions on their ability to practise privately in Guernsey after leaving the MSG (2 years for partners, 18 months for associates). . The GCRA considered that those restrictions were contrary to section 5(1) of the 2012 Ordinance (equivalent to the UK Chapter I prohibition or Article 101(1) TFEU), directed the MSG to remove those restrictions from its agreements with doctors and, in a separate decision, imposed a penalty of over £1.5m on the MSG.

In its appeal, the MSG argued that the restrictions were justified on the basis that the ability to practise privately and without immediate competition from former MSG doctors was critical to attracting specialist medical practitioners to Guernsey, and identified what it said were a number of errors in the GCRA’s analysis.

In his judgment, the Bailiff, the senior judge in Guernsey, held that the Royal Court was able to review GCRA decisions on a basis wider than traditional judicial review, so that the Court could consider any complaint made about the decision-making process or the decision reached. He found that the reasoning employed by the GCRA to support its rejection of the MSG’s justification for the restrictions was flawed in various respects and that the GCRA had failed to give evidence from GP practices sufficient weight. He set the infringement decision and penalty decision aside and remitted the matter to the GCRA for reconsideration in the light of his judgment.

The judgment establishes that the GCRA’s decisions are subject to detailed scrutiny by the Royal Court going well beyond traditional judicial review. It will also be of interest to anyone dealing with the application of the competition rules to post-termination restrictions on professional or specialist practice.

George Peretz KC assisted a Carey Olsen team led by Advocate Elaine Gray, of the Guernsey Bar, on behalf of MSG.