Kassie Smith QC and Brendan McGurk success in private healthcare appeal

25 Jul 2016 | by Daiva Eitkeviciene

The Court of Appeal handed down judgment today in the appeal brought by the Federation of Independent Practitioners (“FIPO”) from the Competition Appeal Tribunal’s (“CAT”) judgment of 29 April 2015.  FIPO had challenged the CMA’s finding that buyer power on the part of private medical insurers (“PMIs”) did not lead to an adverse effect on competition (“AEC”) in the market for private healthcare.   The CAT dismissed that appeal by a majority judgment (Sales LJ and Clare Potter) with Dermott Glynn, an economist member of the CAT, dissenting.

FIPO sought to appeal the CAT’s judgment on a number of grounds including that the CAT had reached irrational conclusions on issues such as fee capping, top-up fees and consumer choice.  FIPO also argued that the majority had wrongly rejected Mr Glynn’s dissenting judgment and/or failed to give adequate reasons for disagreeing with the dissenting judgment.  The CAT had given FIPO permission to appeal.

The Court of Appeal dismissed FIPO’s appeal on all grounds.  The Lord Chancellor gave the judgment of the Court.  He carefully considered the CMA’s reasoning in its Decision and determined that “the CMA’s overall conclusion, at which it was entitled to arrive, was that, despite its potential to do so, the buyer power of PMIs, and in particular Bupa and AXA PPP, had not in fact prevented, restricted or distorted competition or reduced consumer choice”.  He held that the CAT had properly considered FIPO’s criticisms of the CMA’s conclusions on appeal but that they were entitled, and indeed right, to reject them.  He also held that there was no obligation on the majority of the CAT to explain why they disagreed with Mr Glynn: “for the purposes of this appeal, it is sufficient to determine whether or not the challenges to the decision of the majority in the CAT are justified”.

Kassie Smith QC and Brendan McGurk acted for the CMA.

To read the full judgment, please click here.