20/03/2012

Tesco Stores Ltd v Office of Fair Trading [2012] CAT 6

Ruling on a disclosure application by the OFT in Tesco’s appeal against the OFT’s finding of liability under Chapter I of the competition act in relation to the pricing of British and Territorial Cheese and Cheddar, the Competition Appeal Tribunal considered obiter dictum whether litigation privilege applied to OFT enforcement proceedings.  The CAT’s obiter comments offer some important guidance and confirmed that the correct approach was that in Re L [1997] AC 16 (family proceedings, holding that litigation privilege could only arise in adversarial proceedings).   Investigation proceedings by the OFT will not necessarily attract litigation privilege although, the CAT stated its view that it would apply to the materials in question which had been gathered by Tesco shortly before the infringement decision was taken.

Stephen Morris QC and Josephine Davies acted for OFT