Intercontinental Exchange, Inc v Competition and Markets Authority (Permission to appeal and costs) [2017] CAT 8 (24 March 2017)

Intercontinental Exchange, Inc v Competition and Markets Authority (Permission to appeal and costs) [2017] CAT 8 (24 March 2017)

Permission to appeal was refused because none of ICE's grounds had a real prospect of success; the Tribunal's findings were either matters of fact not susceptible to appeal or were correctly reasoned in law. On costs, the CMA was the overall successful party, but a 40% reduction was appropriate to reflect ICE's...

Source-derived case information.

Citation
[2017] CAT 8
Parties
Applicant: Intercontinental Exchange, Inc.; Respondent: Competition and Markets Authority; Intervener: NASDAQ Stockholm AB
Jurisdiction
United Kingdom
Judgment Date
24 March 2017
Procedural Posture
Judicial Review Under Section 120 of the Enterprise Act 2002 / Ruling on Permission to Appeal and Costs Following Substantive Judgment
Outcome
Permission to appeal refused; costs order made in favour of the CMA.
Legal Topics
Merger Control, Judicial Review, Costs Orders, Permission to Appeal, Abuse of Dominance, Directors' Duties
Competition Law Administrative Law Merger Control Judicial Review Costs Orders Permission to Appeal Abuse of Dominance Directors' Duties

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Summary, issues, holding and outcome

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Parties

Intercontinental Exchange, Inc.

Applicant

Competition and Markets Authority

Respondent

NASDAQ Stockholm AB

Intervener

Procedural Posture

Judicial Review Under Section 120 of the Enterprise Act 2002 / Ruling on Permission to Appeal and Costs Following Substantive Judgment

Legal Issues

  1. 1 Whether permission to appeal the Tribunal's judgment should be granted
  2. 2 Whether the Tribunal erred in its assessment of the counterfactual regarding the New Agreement
  3. 3 Whether the Tribunal erred in its approach to abuse of dominance and directors' duties

Ratio Decidendi

Permission to appeal was refused because none of ICE's grounds had a real prospect of success; the Tribunal's findings were either matters of fact not susceptible to appeal or were correctly reasoned in law. On costs, the CMA was the overall successful party, but a 40% reduction was appropriate to reflect ICE's partial success on the New Agreement issue. ICE was ordered to pay 60% of the CMA's costs, summarily assessed at £127,800.

Court Disposition

Permission to appeal refused; costs order made in favour of the CMA.

Orders

  • Permission to appeal is refused.
  • ICE to pay the CMA the sum of £127,800 in respect of its costs, such payment to be made within 28 days of the date of the ruling.