CAT rejects John Lewis’s challenge to extended warranties website

02/04/13

The Office of Fair Trading accepted undertakings in lieu of a reference to the Competition Commission to investigate the market for extended warranties on domestic electrical goods in June 2012, pursuant to section 154 of the Enterprise Act 2002.  One of the undertakings was that Dixons, Argos, and Comet agreed to set up and run a website comparing the prices of extended warranties on domestic electrical goods.  John Lewis Plc applied to the Competition Appeal Tribunal under section 179 of the Enterprise Act 2002 for judicial review of the OFT's decision that John Lewis' extended warranties whose prices are bundled with the price of the relevant domestic electrical good would not be included in the price comparison website.

The Tribunal (Vivien Rose, Peter Freeman CBE QC (Hon) Stephen Harrison) dismissed John Lewis' application for review.  The Tribunal held that John Lewis' application was out of time, because the decision not to include its bundled extended warranties was made as part of when the OFT decided to accept the undertakings lieu of reference accepted in June, a decision which John Lewis had not challenged.  That decision could not have been (and was not) subsequently amended by the OFT, and there was no good reason to extend time.

The Tribunal dismissed John Lewis' grounds of review, on the grounds that (a) the OFT had not breached its statutory duty under section 162 to keep the undertakings under review but had properly implemented the undertakings, (b) the OFT had exercised its discretion under section 154 to accept undertakings in lieu in June.  After that, section 154 did not impose any continuing duties on the OFT, so the OFT had not breached section 154 of the Act; and (c) the same was the case with John Lewis' argument that the OFT was in breach of EU law; the OFT's relevant decisions were taken in June and John Lewis had not challenged them.

The judgment is here.