Two wrongs don’t make a right or Public law orthodoxy rules again
On 16 May 2018, the Supreme Court handed down judgement in an appeal concerning the way in which the Office of Fair Trading (the “OFT”) conducted settlement negotiations under its so-called “Early Resolution Process” (“ER Process”) with parties subject to its tobacco investigation. It held that a mistake made to the benefit of one party during settlement negotiations is not required to be replicated to the benefit of other parties. It reached this conclusion, overturning the Court of Appeal’s decision, on the basis of traditional principles of public law rationality and legitimate expectation. The Supreme Court rejected the argument that there are distinct legal criteria of “equal treatment” and (substantive) “fairness” amongst the traditional principles of judicial review.
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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.