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Administrative Court rejects challenge to CMA’s decision not to stay excessive pricing investigation

25/06/19

The Administrative Court dismissed a claim for judicial review brought by Advanz in respect of a decision of the Competition and Markets Authority refusing to stay its investigation into the alleged excessive pricing of Liothyronine.

Following the judgment of the Competition Appeal Tribunal in the Phenytoin case, which also concerned the excessive pricing of pharmaceuticals, the CMA issued Advanz with a supplementary statement of objections which applied the test for excessive pricing laid down by the CAT.  Advanz argued that it should not be required to respond to the SSO as the appeal in Phenytoin is due to be heard by the Court of Appeal in November.  Advanz accordingly sought a stay of the investigation on the basis that, if the appeal were allowed and the test laid down by the CAT rejected, its considerable work in responding to the SSO would be wasted. 

In dismissing Advanz’s claim for judicial review, the Administrative Court held that the CMA had a considerable margin of discretion in managing its own investigations and had acted fairly and rationally in finding that the arguments relied on by Advanz in favour of a stay were outweighed by the public interest in progressing the investigation. 

The judgment is here.

Marie Demetriou QC was instructed by and represented the CMA.