Brick Court Success in Imperial Tobacco / OFT dispute

12/12/11

Imperial Tobacco & ors -v- OFT

Imperial Tobacco have been successful in their appeal against a £112 million fine imposed on them by the OFT in April 2010, in a judgment handed down by the CAT today. This was one of the biggest fines the OFT had ever imposed upon a single firm.

Mark Howard QC and Tony Singla appearing for Imperial Tobacco, instructed by Ashurst, subjected the OFT's case to rigorous forensic analysis, which ultimately led to the collapse of the case before the Competition Appeal Tribunal after 8 weeks, and after 19 factual witnesses had given evidence. The principal and persuasive arguments forwarded by the Imperial team being accepted by the Tribunal, consequently various retailers also had their appeals successfully concluded.

As recorded in the Tribunal's judgment, all of the factual witnesses who gave evidence before the Tribunal - including the one witness called by the OFT - had rejected the OFT's case as set out in the Decision. In light of that, the OFT abandoned its defence of the Chapter I infringements found in the Decision. Instead, the OFT sought to persuade the Tribunal that it should be allowed to pursue a "refined case" consisting of different infringements. The OFT contended that the Decision should be read as including this "refined case" or alternatively that the Tribunal had jurisdiction to continue hearing the appeals.

Following written submissions and a 2 day hearing on these issues, the Tribunal rejected the OFT's submissions and acceded to Imperial's application to set aside the Decision and allow the appeals forthwith.

Arguments on costs were delayed until a later date.

The judgment is here.