Antitrust Alert: UK Competition Appeal Tribunal Clarifies Scope of Litigation Privilege in Office of Fair Trading Investigations
The UK Competition Appeal Tribunal ("CAT") has ruled that litigation privilege attaches to documents of parties being investigated, even when created before the Office of Fair Trading ("OFT") takes a formal infringement decision. The CAT confirmed that, once the OFT has issued a Statement of Objections ("SO"), which is the OFT’s proposed decision that competition law has been violated, the administrative procedure has become confrontational and sufficiently adversarial that information gathered by the defendant in relation to its defense is protected from disclosure by litigation privilege.
This judgment is important because it clarifies that documents prepared by a party and its external lawyers in contemplation of an appeal against a possible OFT infringement decision are protected by litigation privilege.
In 2011, the OFT fined Tesco, three other supermarkets and five dairy processors for breaching the UK Competition Act 1998, Chapter I (which prohibits anticompetitive agreements) by indirectly exchanging their retail pricing intentions for certain cheeses. Tesco was fined £10.43 million and appealed to the CAT for an annulment of the OFT's decision.
In the appeal process, the OFT applied to the CAT for an order that Tesco disclose to the OFT information about its contacts with potential witnesses and disclose any records of discussions with those individuals. In response, Tesco submitted that the relevant material was subject to litigation privilege.
In proceedings before the CAT, there is no automatic right to obtain disclosure of documents in disputes between the parties to the main proceedings. When disclosure is applied for, the CAT must be satisfied it is necessary, relevant and proportionate for the fair disposal of the issues of substance in the appeal.
In this matter, the OFT was seeking disclosure of notes relating to discussions between Tesco and its external solicitors and potential witnesses. The OFT planned to use these notes to cross-examine the witnesses called by Tesco. The CAT ruled that disclosure was neither necessary nor appropriate to the main proceedings and that the use of the material was likely to be unfair and unhelpful.
The CAT went on to consider whether the relevant material was subject to litigation privilege.
Legal advice privilege and litigation privilege are distinct types of legal professional privilege. In very general terms, legal advice privilege applies whether or not litigation is pending or contemplated whereas litigation privilege can only apply when litigation is pending or contemplated. Specifically, the question before the CAT was whether litigation privilege attached to documents and information created during the administrative part of an OFT investigation and before a formal OFT decision regarding the matter under investigation has been taken.
The OFT submitted that the administrative procedure under the Competition Act 1998 is investigative and non-adversarial in nature and accordingly litigation privilege cannot apply.
Rejecting the OFT position, the CAT ruled that the nature of the proceedings in question and the particular circumstances of each individual case should be considered in order to decide whether competition law investigations are adversarial or inquisitorial. Nevertheless, it is clear that by the time an SO was issued the proceedings were, in this case, confrontational and sufficiently adversarial that the information gathered at that time and thereafter would be subject to litigation privilege.
Significantly, the CAT identified as relevant to characterizing the nature of an OFT investigation that OFT administrative proceedings may lead to the imposition of a penalty that is criminal in nature under the European Convention on Human Rights, Article 6. Once the threat of such a sanction is crystallized by the OFT issuing an SO, disclosure would be disproportionate for the fair disposal of the issues of substance in the appeal.
The CAT's judgment is significant in that it clarifies the position in relation to legal advice privilege and litigation privilege. There will be a point at which the OFT’s administrative procedures can become adversarial. When that occurs, litigation privilege will apply, thereby protecting documents assembled in defense of a company’s rights being protected from disclosure. The CAT has emphasized that this is an important clarification, saying "were the position not so the scope for witnesses being discouraged and unfairness would very likely be increased." The exact point at which administrative proceedings become adversarial prior to an SO having been issued will depend on the circumstances of each case. However, it is clear that, once an SO has been issued, the proceedings will be deemed adversarial and these privileges will apply.
Compliance and internal investigation of potential competition issues are major priorities for in-house legal departments. A decision by the CAT to have allowed the disclosure of documents at a stage in the investigation, where the OFT was contemplating but had not yet taken a formal infringement decision, would have had a negative effect on compliance and the conduct of internal investigations in future.
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