Allergan PLC & Ors v Competition and Markets Authority [2024] EWCA Civ 1023 (06 September 2024)

Allergan PLC & Ors v Competition and Markets Authority [2024] EWCA Civ 1023 (06 September 2024)

The CMA's case was properly put to witnesses and did not require allegations of dishonesty. The Tribunal erred in requiring cross-examination on dishonesty and in overturning substantive findings based on procedural grounds. The Tribunal's provisional findings in H2 should be reinstated and finalised, and additional findings as to dishonesty overturned.

Citation
[2024] EWCA Civ 1023
Parties
Applicant/respondent: Allergan PLC; Applicant/respondent: Amdipharm UK Limited; Applicant/respondent: Amdipharm Limited; Applicant/respondent: Advanz Pharma Services (UK) Limited; Applicant/respondent: Advanz Pharma Corp. Limited; Applicant/respondent: Cinven (Luxco 1) SARL; Applicant/respondent: Cinven Capital Management (V) General Partner Ltd; Applicant/respondent: Cinven Partners LLP; Applicant/respondent: Auden McKenzie (Pharma Division) Limited; Applicant/respondent: Accord-UK Limited; Respondent/appellant: Competition and Markets Authority; Non Party (referenced): Waymade; Non Party (referenced): Actavis
Jurisdiction
England and Wales
Judgment Date
06 September 2024
Procedural Posture
Competition Appeal / Court of Appeal Judgment on Substantive Appeals and Applications for Permission to Appeal
Outcome
CMA's appeals allowed; companies' applications for permission to appeal refused; Tribunal's provisional findings reinstated; additional findings as to dishonesty overturned.
Legal Topics
Chapter I Prohibition, Market Definition, Anti Competitive Agreements, Due Process in Competition Appeals, Strict Liability, Sham Agreements
Competition Law Pharmaceutical Regulation Chapter I Prohibition Market Definition Anti Competitive Agreements Due Process in Competition Appeals Strict Liability Sham Agreements

Case Brief

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Parties

Allergan PLC

Applicant/respondent

Amdipharm UK Limited

Applicant/respondent

Amdipharm Limited

Applicant/respondent

Advanz Pharma Services (UK) Limited

Applicant/respondent

Advanz Pharma Corp. Limited

Applicant/respondent

Cinven (Luxco 1) SARL

Applicant/respondent

Cinven Capital Management (V) General Partner Ltd

Applicant/respondent

Cinven Partners LLP

Applicant/respondent

Auden McKenzie (Pharma Division) Limited

Applicant/respondent

Accord-UK Limited

Applicant/respondent

Competition and Markets Authority

Respondent/appellant

Waymade

Non Party (referenced)

Actavis

Non Party (referenced)

Procedural Posture

Competition Appeal / Court of Appeal Judgment on Substantive Appeals and Applications for Permission to Appeal

Legal Issues

  1. 1 Whether the Competition and Markets Authority (CMA) properly put its case to witnesses in the Tribunal
  2. 2 Whether the Tribunal erred in requiring allegations of dishonesty for Chapter I infringement
  3. 3 Whether the Tribunal's provisional findings should be reinstated or overturned

Ratio Decidendi

The CMA's case was properly put to witnesses and did not require allegations of dishonesty. The Tribunal erred in requiring cross-examination on dishonesty and in overturning substantive findings based on procedural grounds. The Tribunal's provisional findings in H2 should be reinstated and finalised, and additional findings as to dishonesty overturned.

Court Disposition

CMA's appeals allowed; companies' applications for permission to appeal refused; Tribunal's provisional findings reinstated; additional findings as to dishonesty overturned.

Orders

  • CMA's appeal from H3 allowed
  • CMA's application for permission to appeal from H2 granted and appeal allowed