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Contact with chambers should be made through the Practice Management Team. They are happy to discuss client requirements and provide further information on such matters as the expertise and experience of individual members, fees, working practices and languages spoken. We have members able to work in French, German, Italian, Spanish, Dutch, Swedish, Greek and Chinese (Mandarin).

Outside working hours, a member of our team is always available to be contacted on matters of an urgent nature. Contact should be made using the Chambers main number or email.

To contact our Singapore office, please contact our BD Director, Asia, Rachel Foxton. Out of office hours calls will automatically be diverted to our clerking team in London.

London

Twenty Essex Street
London
WC2R 3AL

enquiries@twentyessex.com
t: +44 20 7842 1200
DX 0009 Lond/Chan Lane

Singapore

28 Maxwell Road
#02-03
Maxwell Chambers Suites
Singapore 069120

singapore@twentyessex.com
t: +65 62257230

Contact

Contact with chambers should be made through the Practice Management Team. They are happy to discuss client requirements and provide further information on such matters as the expertise and experience of individual members, fees, working practices and languages spoken. We have members able to work in French, German, Italian, Spanish, Dutch, Swedish, Greek and Chinese (Mandarin).

Outside working hours, a member of our team is always available to be contacted on matters of an urgent nature. Contact should be made using the Chambers main number or email.

To contact our Singapore office, please contact our BD Director, Asia, Rachel Foxton. Out of office hours calls will automatically be diverted to our clerking team in London.

London

Twenty Essex Street
London
WC2R 3AL

enquiries@twentyessex.com
t: +44 20 7842 1200
DX 0009 Lond/Chan Lane

Singapore

28 Maxwell Road
#02-03
Maxwell Chambers Suites
Singapore 069120

singapore@twentyessex.com
t: +65 62257230

20/12/2012

Tesco found guilty of unlawful exchange of pricing information

This is an archived article, and some links may not work. Contact us if you have any questions.

In its decision of 26 July 2011, the Office of Fair Trading found that Asda, Safeway, Sainsbury and Tesco, together with the major dairy processors Dairy Crest, Glanbia and McLelland, took part in an unlawful concerted practice relating to the pricing of British cheese in 2002 which infringed the Competition Act 1998. The OFT also found that Asda, Sainsbury and Tesco, together with McLelland, took part in an unlawful concerted practice in relation to the pricing of British cheese in 2003.


Tesco was fined £10.4m and substantial fines were also given to the other participants. Tesco alone appealed, on both liability and penalty.


After a four week trial between April and July this year, the CAT has now handed down judgment on the main liability issues. The CAT upheld the OFT’s finding of liability in relation to events in 2002, the principal infringement found by the OFT, although the case was held to be insufficiently proven in relation to some of the individual factual strands of the infringement in 2002, and in relation to the events in 2003.


The infringement alleged involved the indirect exchange between supermarkets of future pricing intentions, in a “hub-and-spoke” (or “A-B-C”) arrangement through dairy suppliers. This was the first time the CAT has had to consider such arrangements, since the leading judgment of the Court of Appeal in Replica Kit and Toys. Despite objection by Tesco as to the quality of the evidence relied upon, the CAT was satisfied that the documentary evidence was sufficient to establish that Tesco was involved in a number of unlawful indirect exchanges of future pricing information.


The decision represents an important application of the principles of UK competition law to indirect information exchange. The CAT accepted that Early Resolution Agreements (“ERAs”) reached with the other parties, while not probative against Tesco itself in respect of its own involvement, could be probative in respect of a finding that other parties to the concerted practice had participated with the relevant mental state (although on the facts of the case, relatively little weight was given to them). The CAT also gave consideration to the necessary mental state of a party participating in such an indirect concerted practice, and applied, for the first time in an indirect exchange case, the Anic presumption that a party receiving illicit information is presumed to have used it unless he rebuts that presumption.


Stephen Morris QC, Thomas Raphael and Josephine Davies of 20 Essex Street, and Kassie Smith of Monckton Chambers, appeared on behalf of the Office of Fair Trading in the appeal before the CAT.


See Tesco Stores Ltd and others v. Office of Fair Trading [2012] CAT 31 or click here for the judgment and summary.


 

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