HCA v Competition and Markets Authority: remittal to a new decision maker

21 May 2015

The Court of Appeal handed down judgment today in a case regarding the circumstances in which a court or tribunal quashing a decision by an administrative body should remit that decision to be made by a freshly constituted decision making body when allegations had been made, not only of apparent bias, but also of incompetence and unfairness.

The case arose from the Competition and Market Authority’s (CMA’s) investigation into the private healthcare market.  HCA is a private healthcare operator in the UK, particularly London, and runs hospitals such as the London Bridge and Princess Grace.  It was one of the main subjects of the CMA’s private healthcare investigation.  As a result of decisions made by the CMA in its report into that investigation published in April 2014, HCA had brought review proceedings in the Competition Appeal Tribunal (CAT).  In the course of those proceedings, the CMA had agreed that certain of its decisions affecting HCA should be quashed by the CAT and remitted to it.  HCA asked the CAT to remit the decisions to be remade by a freshly constituted inquiry group of the CMA.  That application was made on the basis that the inquiry group of the CMA which had handled the original investigation, was incompetent, treated HCA unfairly over an extended period, and would be affected by either or both of apparent bias and “confirmation bias”.   The CAT had rejected that application in its judgment of 23 December 2014.  HCA appealed that judgment.

The Court of Appeal indicated that the test to be applied in such a case was “that remission will be made to the same decision maker unless that would cause reasonably perceived unfairness to the affected parties or would damage public confidence in the decision making process”.  The Court indicated that the basis on which the Court will approach those “two interlocking concepts” may depend heavily on the facts.    The Court considered the facts of the case in some detail.  It concluded that the CMA had acted unfairly as regards one particular hearing with HCA during the administrative process, but that overall remission to the same inquiry group of the CMA would not cause reasonably perceived unfairness to HCA or damage public confidence in the decision making process.  The Court therefore concluded that HCA’s appeal should be dismissed.  Two further grounds of appeal regarding costs were also dismissed.

Kassie Smith QC and Robert Palmer acted for the CMA.

Josh Holmes acted for HCA.

Please click to view the HCA International v CMA judgment.