Costs claim in construction bid-rigging appeal dismissed

An application requesting that the OFT pay two-thirds of the costs of a company’s appeal against a bidrigging fine has been rejected by the CAT.  

Durkan Pudelek Limited and Durkan Limited (together Durkan) were fined £6.7 million in September 2009 for infringing Chapter I of the Competition Act 1998 for cover pricing during tenders. The fine was reduced by the CAT, on 22 March 2011, to £2.3 million on appeal.

In the application for its costs, Durkan argued that it had been generally successful in its appeal, and that it should therefore be awarded two-thirds of its costs. However, in the original appeal against the OFT’s decision, Durkan had also contested an OFT finding that Durkan Holdings, the parent company, was jointly and severally liable for the infringements. This finding was upheld by the CAT.

The CAT took into account that while both parties had been partly successful, the argument on parent company liability had incurred most of the costs in the appeal. Furthermore, two of Durkan’s three arguments on the level of the fine had failed, but they had occupied a large proportion of the Tribunal’s time. On balance, therefore, the CAT considered that no order for costs should be made.