The Competition Appeal Tribunal ("CAT") today handed down an important ruling relating to the rules governing the disclosure to the OFT of documents that had not been relied upon by the OFT in reaching its decision. It is believed to be the first occasion on which the CAT has made a formal disclosure order against an appellant, in respect of documents sought by the OFT.
The proceedings concern an appeal by Durkan Holdings, Durkan Limited and Concentra Limited ("Durkan"), against the OFT's decision of 21 September 2009 relating to bid rigging in the construction industry. Their appeal is one of the 25 ongoing appeals against the OFT's decision, which are due to be heard in June and July this year. The OFT applied for disclosure by Durkan of certain documents which it said were relevant to the cross-examination of Durkan's witnesses on the issues raised in their witness statements.
Although the CAT noted its broad powers to order disclosure, it held that the presumption against permitting the OFT to rely on new evidence was engaged in this case. There was no meaningful distinction, in the CAT's view, between seeking disclosure of documents and actively putting them into evidence in the form of witness statements.
However the CAT held that the presumption was rebutted in the circumstances of the case. Durkan was seeking to rely on some documents that had not been disclosed during the investigation, and was placing particular weight on other documents that had been disclosed. To prohibit the OFT from seeking disclosure of further evidence in rebuttal would lead to a "significant lack of balance and fairness in the appeal process". Consequently, the requested disclosure was ordered. This included an order for third party disclosure from two individuals no longer employed by the appellants, but who were being called as witnesses on behalf of Durkan.
The judgment is here.
Kelyn Bacon and Tony Singla appeared on behalf of the OFT.
Mark Hoskins QC appeared on behalf of Durkan.