R (on the application of Gallagher Group Limited and others) (Respondents) v The Competition and Markets Authority (Appellant)
Case ID: UKSC 2016/0185
Whether the principle of fair and equal treatment can require a decision-maker to replicate the effect of assurances given to one party that were made based on a mistake of legal principle in favour of other parties in a comparable position.
The Office of Fair Trading ("OFT") found that 12 parties including the respondents had entered into agreements, related to the pricing of certain tobacco products, which were prohibited by section 2 of the Competition Act 1998. Six parties exercised their right to appeal the decision to the Tribunal. The respondents did not do so, instead electing to pay the penalties imposed.
TM Retail was one of the six parties which decided not to appeal. It made this decision on the basis of assurances given to it by the OFT in 2008 that if it did not appeal, it would get the benefit of any successful appeal made by any of the other parties to the decision. The Tribunal subsequently allowed the appeals of the six parties. Due to the assurances provided to TM Retail, the OFT decided to enter a settlement agreement and repay the penalty levied on TM Retail. Shortly afterwards, the OFT made a public statement on its website referring to the assurances given and the resultant settlement.
The Competition and Markets Authority
- Gallagher Group Ltd
- Gallagher Ltd
- Co-operative Group Ltd (in substitution for Somerfield Stores Ltd)
- Co-Operative Group Food Ltd
Lord Mance, Lord Sumption, Lord Carnwath, Lord Hodge, Lord Briggs
Hearing start date
13 Mar 2018
Hearing finish date
14 Mar 2018