Access to CMA documents can be obtained through rights of appeal in the Competition Appeal Tribunal

Introduction

In a judgment published in July 2014, the Competition Appeal Tribunal (the CAT) ruled in favour of applicants seeking disclosure of documents from the Competition and Markets Authority (the CMA) case file concerning completed investigations. The judgment arose in connection with appeals against the CMA's decisions in the private healthcare market investigation. The CAT weighed the benefits to the applicant of granting disclosure against the burden of disclosure falling on the CMA. Fairness and the need to ensure that parties are on an equal footing trumped practical and procedural considerations on each occasion.

This case indicates the importance of procedural fairness and equality of arms when it comes to disclosure issues – even when the right of appeal is more limited than a full merits review, as applies to the CAT's review of CMA decisions. The case suggests that parties bringing appeals in relation to CMA investigations will have strong grounds for disclosure of documents that are crucial to understanding the CMA's reasoning and approach.

Private healthcare market investigation

In a judgment published on 25 July 2014, applicant HCA International Limited (HCA) had challenged the CMA's findings in the private healthcare market investigation.1 The CMA published its final report on the matter on 2 April 2014, requiring (among other things) the divestiture by HCA of some of the private hospitals that it owned. On 30 May 2014, HCA applied to the CAT for review of these findings. One of HCA's primary grounds for challenge was the CMA's reliance on its insured prices analysis. The insured prices analysis was derived from raw data gathered during the course of the investigation by the CMA's predecessor – the Office of Fair Trading (the OFT) – from private hospitals concerning charges that they had made to individuals and insurance companies for healthcare services. As part of its analysis, the CMA 'cleaned' and aggregated the raw data to derive average figures for particular procedures in order to conduct a comparative analysis of whether charges made by particular private hospitals or operators were in sync with those of others. The CMA also applied statistical analyses, including regression analysis. HCA sought disclosure of:

  • the raw data;
  • the cleaned data;
  • full details of the CMA's methodology;
  • the full set of results from each step of the analysis; and
  • the full set of results from any sensitivity analysis or robustness checks performed by the CMA.

The CMA characterised HCA's application as a fishing expedition and argued that the level of disclosure sought went well beyond that required in judicial review proceedings. It claimed that the provision of such a vast amount of data was unnecessary and that it would be disproportionately burdensome for the CMA to provide it. It also argued that without proper precautions, disclosure of the insured prices analysis data could of itself be detrimental to the maintenance of a competitive private healthcare market, as the data contained highly sensitive commercial information; thus, disclosure to HCA could give it an unfair commercial advantage. In ruling in favour of disclosure, the CAT noted that the analysis critically formed the basis of the CMA's findings on which it had relied in reaching its conclusions on divestment. It found that to deny HCA access to the data would render it 'practically disabled from making the best case it can'2 in challenging the CMA's findings and the application should therefore be allowed on the grounds of fairness. The CAT was not unsympathetic to the CMA's concerns about the practical difficulties of granting access to the data, but considered this a matter to be resolved through discussion between the parties.

Comment

This case demonstrates that the principles of fairness and equality will override more practical considerations when it comes to matters of disclosure. However, there are positive signs that the CMA intends to adopt a more open approach going forward. Earlier this year, the CMA published its new policy on transparency and disclosure, in which it promotes transparency 'as a means of achieving due process and ensuring that parties directly involved in a case are treated fairly'.3 The policy states:

'Ensuring due process for those directly involved in the CMA's work and effectively engaging with other interested persons in turn improves the effectiveness and efficiency of the CMA's work, and the quality and robustness of its decision-making.'4

The CMA thus explicitly recognises the need for effective engagement with parties as a means to ensure robust decision making.

For the parties involved in or affected by investigations, this case demonstrate that access to CMA documents can be obtained through rights of appeal in the CAT. More importantly, under the new regime, the time and expense of relying on appeal rights may be avoided by actively pursuing the CMA for documents during the course of an investigation – if you don't ask, you don't get.