NAPP PHARMACEUTICAL HOLDINGS LTD V DIRECTOR GENERAL OF FAIR TRADING [2002] EWCA Civ 796
FACTS:-
The Claimant company had a dominant position in the drugs market for the supply of a certain drug. The Director General made a finding that it had abused its dominant position in the terms of section 18 of the Competition Act 1998 in a number of ways. He imposed various regulatory measures and imposed a penalty of £3.21 million, which was later reduced. Napp sought permission to appeal to the Court of Appeal against both the findings of the Tribunal as to abuse and the fact and amount of the penalty.
JUDGEMENT::-
Lord Justice Buxton said that appeal to the Court of Appeal from the Tribunal, apart from appeals as to the amount of the penalty, were on points of law only. That had two particular implications. First, by reason of section 60 of the Competition Act the Tribunal was required, as was the Court of Appeal, to secure that there was no inconsistency between its decisions and the principles laid down by the Treaty establishing the European Union and any principles laid down by or any relevant decision of the Court of Justice. That means that the "law" that would be applied was likely to be largely or entirely the law of the European Union, and that meant in its turn that both the courts and those appearing before them had a particular responsibility to identify clearly what in the jurisprudence of the European Union was truly a principle or decision, in the terms of section 60, and what is not such. Second, it was important that parties seeking to appeal to this court should isolate within the criticised decision what was an issue of law, and what was merely a determination, by a specialist Tribunal, of a matter of fact or judgement. In order to clarify the question that this court had to decide, and to facilitate its task, it would be desirable in future if an applicant, in his Grounds or in Grounds supplemented by a short skeleton, set out his case as follows:
1. Identify in precise terms the rule of law said to have been infringed;
2. Demonstrate where in the European jurisprudence that rule was to be found, by specific reference to the European authorities;
3. Demonstrate briefly from the Tribunal's judgement the nature of the error, by reference to the Tribunal's handling of the issue in question.
If that is done, two benefits would accrue. First, it should swiftly become apparent what complaints were truly points of law, and what were attempts to reargue issues of fact or judgement. Second, it should not be necessary for the court, at least at the permission stage, and probably not thereafter, to read more than the Tribunal's judgement, the Grounds and skeleton, and the relevant parts of the authorities relied on.
The law indicated that the concept of abuse wa an "objective" concept, and that conduct by an undertaking in a dominant position wouldl be an abuse if:
(i) it influenced the structure of the market; and
(ii) in the market where competition was already weakened by the presence of the dominant firm, "by recourse to methods different from those which condition normal competition in products or services on the basis of transactions of commercial operators [the conduct] has the effect of hindering the maintenance of the degree of competition still
The Claimant company said that the Tribunal was to be criticised because it had ignored or blinded itself to the specific factors in the hospital market. Buxton LJ could not agree. This was all a matter of judgement on the part of the Tribunal, to which it brought its specialist and expert understanding of the way in which markets worked. There was no way in which this court could go behind that finding, involving, as it did, no arguable error of law on the part of the Tribunal.
The findings of the Tribunal did not and could not involve points of law, at least unless it were to be contended that the conclusions had been arrived at on the basis of no evidence at all: something that was not and could not possibly be said. They could not therefore be reviewed in this court. But even if the court did have authority to review such findings, as the conclusion of an expert and specialist tribunal, specifically constituted by Parliament to make judgements in an area in which judges had no expertise, they fell exactly into the category identified by Hale LJ in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, as an area which this court would be very slow indeed to enter. The Claimant was wholly unable to demonstrate at any stage of the proceedings that any point of law arose from the Tribunal's account. It was, again, classically an expert analysis of market behaviour and effects, into which this court was not only reluctant to enter, but was also precluded by its powers from entering at all. Buxton LJ could see no way in which any point of law suitable for the consideration of this court arose out of the Tribunal's determination.
Brooke LJ agreed.
FACTS:-
The Claimant company had a dominant position in the drugs market for the supply of a certain drug. The Director General made a finding that it had abused its dominant position in the terms of section 18 of the Competition Act 1998 in a number of ways. He imposed various regulatory measures and imposed a penalty of £3.21 million, which was later reduced. Napp sought permission to appeal to the Court of Appeal against both the findings of the Tribunal as to abuse and the fact and amount of the penalty.
JUDGEMENT::-
Lord Justice Buxton said that appeal to the Court of Appeal from the Tribunal, apart from appeals as to the amount of the penalty, were on points of law only. That had two particular implications. First, by reason of section 60 of the Competition Act the Tribunal was required, as was the Court of Appeal, to secure that there was no inconsistency between its decisions and the principles laid down by the Treaty establishing the European Union and any principles laid down by or any relevant decision of the Court of Justice. That means that the "law" that would be applied was likely to be largely or entirely the law of the European Union, and that meant in its turn that both the courts and those appearing before them had a particular responsibility to identify clearly what in the jurisprudence of the European Union was truly a principle or decision, in the terms of section 60, and what is not such. Second, it was important that parties seeking to appeal to this court should isolate within the criticised decision what was an issue of law, and what was merely a determination, by a specialist Tribunal, of a matter of fact or judgement. In order to clarify the question that this court had to decide, and to facilitate its task, it would be desirable in future if an applicant, in his Grounds or in Grounds supplemented by a short skeleton, set out his case as follows:
1. Identify in precise terms the rule of law said to have been infringed;
2. Demonstrate where in the European jurisprudence that rule was to be found, by specific reference to the European authorities;
3. Demonstrate briefly from the Tribunal's judgement the nature of the error, by reference to the Tribunal's handling of the issue in question.
If that is done, two benefits would accrue. First, it should swiftly become apparent what complaints were truly points of law, and what were attempts to reargue issues of fact or judgement. Second, it should not be necessary for the court, at least at the permission stage, and probably not thereafter, to read more than the Tribunal's judgement, the Grounds and skeleton, and the relevant parts of the authorities relied on.
The law indicated that the concept of abuse wa an "objective" concept, and that conduct by an undertaking in a dominant position wouldl be an abuse if:
(i) it influenced the structure of the market; and
(ii) in the market where competition was already weakened by the presence of the dominant firm, "by recourse to methods different from those which condition normal competition in products or services on the basis of transactions of commercial operators [the conduct] has the effect of hindering the maintenance of the degree of competition still
The Claimant company said that the Tribunal was to be criticised because it had ignored or blinded itself to the specific factors in the hospital market. Buxton LJ could not agree. This was all a matter of judgement on the part of the Tribunal, to which it brought its specialist and expert understanding of the way in which markets worked. There was no way in which this court could go behind that finding, involving, as it did, no arguable error of law on the part of the Tribunal.
The findings of the Tribunal did not and could not involve points of law, at least unless it were to be contended that the conclusions had been arrived at on the basis of no evidence at all: something that was not and could not possibly be said. They could not therefore be reviewed in this court. But even if the court did have authority to review such findings, as the conclusion of an expert and specialist tribunal, specifically constituted by Parliament to make judgements in an area in which judges had no expertise, they fell exactly into the category identified by Hale LJ in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, as an area which this court would be very slow indeed to enter. The Claimant was wholly unable to demonstrate at any stage of the proceedings that any point of law arose from the Tribunal's account. It was, again, classically an expert analysis of market behaviour and effects, into which this court was not only reluctant to enter, but was also precluded by its powers from entering at all. Buxton LJ could see no way in which any point of law suitable for the consideration of this court arose out of the Tribunal's determination.
Brooke LJ agreed.