Brick Court Chambers

News & Events

‘One of the super-sets’, Brick Court Chambers is ‘an all-round strong’ set with ‘a large selection of high-quality competition law specialists’, ‘top commercial counsel’, ‘an excellent chambers for banking litigation’, and a ‘go-to’ set for public administrative law.
The Legal 500 2020
The clerks’ room ‘sets the benchmark’ for other sets with its ‘friendly, knowledgeable, and hardworking’ clerks.
The Legal 500 2020
"An outstanding commercial set with a track record of excellence across its core areas of work."
Chambers & Partners 2018
"A set that is singled out for its "first-rate" clerking and "client service-oriented, commercial approach."

Competition Appeal Tribunal upholds infringement decision for excessive pricing abuse and reduces penalty imposed on Allergan


On 18 September the Competition Appeal Tribunal handed down its judgment in relation to the appeals brought by various pharmaceutical companies, challenging the Competition and Market Authority’s finding that they had charged excessive and unfair prices for the drug hydrocortisone, a steroid medicine, and the decision to impose fines totalling £155.2 million.

In a lengthy judgment, the Tribunal upheld the CMA's findings of infringements, and found that the prices charged for hydrocortisone, by successive pharmaceutical companies between October 2008 and July 2018 were excessive and unfair. The Tribunal differed with the CMA’s reasoning in various respects, but upheld its overall conclusions on all but one point. 

In outline summary, the Tribunal disagreed with the CMA’s conclusions as regards market definition, but agreed with the CMA that each of the relevant appellants (successive owners of the marketing authorisation for hydrocortisone) held a dominant position.

b)     The Tribunal considered that the price of a product that is considerably above cost (and so highly profitable) is excessive and unfair unless the seller can show that the "producer surplus" is justifiable because (1) It is achieving substantial profits as a consequence of its efficiency or (2) it is delivering additional value to the customer, by virtue of product differentiation (or some other means). The Tribunal endorsed the CMA’s conclusion that the prices charged by each of the appellants was excessive and unfair and so an abuse of a dominant position. 

Save in one respect, the Tribunal also confirmed the imposition and level of penalties imposed by the CMA. The Tribunal did not uphold the CMA’s conclusion that it could impose a penalty on Allergan, the parent company of the infringing subsidiary, during the period of time after Allergan had entered into binding commitments with the European Commission not to provide direction or oversight to its subsidiary (as part of a merger control process). As a result, the Tribunal reduced Allergan's fine by £26 million in relation to the abuse infringements alone.

The Tribunal has not yet handed down its judgment in relation to the appeals against the finding that there was an unlawful agreement – on the part of some market participants – to stay off the market in exchange for cash transfers. 

The Judgment is available here.

Marie Demetriou KC and David Bailey appeared on behalf of the CMA.

Robert O’Donoghue KC and Emma Mockford appeared on behalf of the Cinven Appellants, instructed by  Clifford Chance LLP.

Sarah Ford KC and Charlotte Thomas appeared on behalf of the Auden/Actavis Appellants, instructed by Macfarlanes LLP.

Daniel Jowell KC and Tim Johnston appeared on behalf of the Allergan Appellants, instructed by Addleshaw Goddard LLP.

Max Schaefer also acted on behalf of the Cinven Appellants before the hearing.