The Competition Appeal Tribunal has dismissed an application by the OFT for disclosure of Tesco's records of interviews with potential witnesses conducted by Tesco and its solicitors during the OFT's investigation into dairy retail pricing. The Tribunal dismissed the OFT's application on the basis that disclosure was neither necessary nor proportionate, and also rejected the OFT's submissions that the documents were not privileged and that Tesco had waived any privilege that did apply.
The Tribunal's judgment addresses the application of litigation privilege to Competition Act investigations (the OFT argued that it does not apply). The Tribunal considered the House of Lords' judgment in Re L (holding that litigation privilege could only arise in adversarial proceedings) and concluded that, at least once the OFT has issued a Statement of Objections, the investigation is no less adversarial than civil litigation. The investigation falls within the criminal limb of Article 6 of the ECHR and fairness requires that the parties under investigation be given the right to present their case and gather evidence. It follows that litigation privilege must apply.
The judgment is here.
Maya Lester and Daniel Piccinin act for Tesco, whose appeal against the OFT's infringement decision starts on 26 April 2012 in the CAT.