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Balancing confidentiality and natural justice in competition investigations


The Competition Appeal Tribunal has ruled that the Competition Commission adopted an unfair procedure that “comprehensively failed” to give parties to the Commission’s ongoing investigation into the private healthcare market a fair opportunity to correct or contradict the Commission’s provisional findings or to make worthwhile representations.  The particular issue before the Tribunal was the restrictive terms on which the Commission had decided to grant the parties’ advisers access to a data room containing confidential information on which the Commission had based its provisional findings and proposed divestment orders and which the parties wish to use in responding.

The 35-page reserved judgment in BMI Healthcare Ltd. & others v. Competition Commission [2013] CAT 24 is remarkable for demonstrating the speed with which the Tribunal is able to act, being delivered only 15 days after the notice of application was filed and less than 48 hours after the hearing. It contains a detailed exposition of the principles for balancing confidentiality with the requirements of a fair hearing, including consideration of confidentiality rings and the appropriate use of data rooms for ring-fencing sensitive information.

The judgment is here.

Judgment in BMI Healthcare Ltd. & others v. Competition Commission [2013] CAT 24

James Flynn QC and Gerard Rothschild appeared for the lead applicant, BMI Healthcare Limited, instructed by Shearman & Sterling (London) LLP.