The Groceries Code Adjudicator (the “GCA”) was set up in June 2013 to ensure that large retailers with a turnover of over £1bn comply with the Groceries Supply Code of Practice (the “Code”). This statutory body has significant powers and responsibilities, including the power to conduct investigations into the retailers’ compliance with the Code, and to follow up those investigations with recommendations or financial penalties. The GCA can also arbitrate between retailers and their suppliers in disputes relating to the Code.
The GCA has already published statutory guidance in relation to how it will exercise its investigatory and enforcement powers, and it has now issued some additional guidance to address questions about appealing against its decisions. Although the GCA has not yet opened any investigations, it is worth being aware of the options available, should an investigation arise and the retailer or the supplier is not satisfied with its outcome.
The following types of decisions of the GCA can be challenged by way of a judicial review:
- A decision to start an investigation;
- A decision following an investigation that a breach has occurred; and
- A decision following an investigation in which a breach has been found, to make recommendations or require the publication of information.
In judicial review cases, the court conducts a review of the process by which a public body has reached a decision to assess whether it was validly made. Grounds for challenge include:
- Illegality – where the decision maker did not have the appropriate powers in reaching the decision, or used the powers wrongly;
- Irrationality – where irrelevant matters were taken into account or there was a failure to consider relevant matters;
- Procedural unfairness – where it failed to comply with its own decision making procedures, or did not observe the principles of natural justice, such as not being biased; and
- Legitimate expectations – where through statements or conduct the body created an expectation on which the applicant relied.
It is important to note that judicial review applications must be brought promptly, and in any event within three months of the decision being taken. As a result, it is essential that if businesses want to challenge such decisions, they must act quickly.
In most cases, a successful claim for judicial review will result in the body retaking the decision, having corrected the error which caused the initial invalid decision.
Appeals to High Court
The following types of decisions by the GCA can be challenged by way of a normal appeal to the High Court on the full merits of the case:
- A decision to impose a financial penalty, or the decision about the amount of that penalty;
- A decision to charge one or more retailers found to have breached the Code some or all of the costs of that investigation, or the decision about the amount of costs to be charged; and
- A decision to impose costs on a person whose complaint is found to have been vexatious or wholly without merit, or the decision about the amount of costs to be charged.
Appeals to the High Court can be made on the grounds that the GCA’s decision was wrong or was unjust due to a serious procedural or other irregularity. Again, any appeal should be made promptly, although the guidance is silent on any time limits. The general position in civil litigation is that an application for an appeal should be made within 21 days of the decision.
The GCA is able to act as an arbitrator in disputes between retailers and their suppliers in connection with the Code. The supplier can refer the matter to arbitration at any time, whereas the retailer can only do so if it has a contractual right to do so. Any decisions made by the GCA in its capacity as arbitrator can only be challenged on very limited grounds under the Arbitration Act 1996, for example where the decision has not addressed an issue in dispute, or the arbitrator exceeded its powers.