A team of Bristows competition lawyers, led by Sophie Lawrance, supported the BGMA and the ABPI to intervene in the UK Supreme Court proceedings in the Pfizer and Flynn Pharma costs appeal, whose judgment was handed down on 25 May.
The Supreme Court ruled against the Court of Appeal judgment that previously held that regulators such as the Competition and Markets Authority should not generally be required to pay costs of a party successfully appealing against one of their infringement decisions. Importantly, overturning an infringement decision would not have been sufficient.
The Supreme Court’s judgment reverses the position to the previous standard that costs follow the event: the Competition Appeal Tribunal remains entitled to make costs awards against the CMA in relation to specific issues, or entire cases, where a company subject to a CMA infringement decision under Chapter I or II Competition Act 1998 has succeeded in its appeal.
The costs of appealing against a CMA decision can be very high (with trials often lasting a week or more), on top of the potentially large sums incurred during the administrative phase – a point that the Bristows team made in its written submission for the BGMA and the ABPI, and mentioned by Lady Rose in the judgment.
Sophie Lawrance commented: “We’re very pleased to see that our clients’ submission was helpful to the Court, and that they agreed with a number of points made in the intervention, citing it in various locations”.
“More importantly, this judgment ensures that meritorious appeals – which can result in crucial guidance for the sector as a whole – are not deterred”, she added.
Companies in the pharmaceutical sector have been subject to significant competition law scrutiny in recent years, often in relation to novel and previously untested conduct – effective (and fair) rights of appeal are therefore critical. The CMA has brought many investigations and enforcement actions with the aim of “ensuring that the NHS, and ultimately the taxpayer, does not pay more than they should for essential medicines and treatments” as stated in its Annual plan. For this reason, the matter was of particular concern to companies active in the pharmaceutical industry, which, had the CAT judgment not be reverted by the Supreme Court, may have been discouraged from appealing against future CMA infringement decisions.
The full judgment can be found here.
Bristows’ team included Partner and Co-head of the Competition practice, Sophie Lawrance, Of Counsel Sean-Paul Brankin, Associate James Batsford, acting alongside barrister Daniel Piccinin of Brick Court Chambers.