Judgment on further relief in Virgin’s application for review pursuant to section 120 of the Enterprise Act 2002. The judgment addressed two questions.
The first question concerned the validity of the existing remedy in respect of the substantial lessening of competition (“SLC”) finding (i.e. divestiture of Sky’s shareholding in ITV to below 7.5%) and whether it was affected by the Tribunal’s findings or the relief already granted in respect of the error of law made by the Competition Commission and the Secretary of State as to the meaning and effect of the statutory provisions in relation to the relevant media public interest consideration (contained in section 58(2C)(a) of the 2002 Act) (the “plurality issue”).
The Tribunal considered that the defects in the Competition Commission’s Report and the Secretary of State’s Decision on the plurality issue did not affect the lawfulness of the Report and the Decision so far as concerns the remedy for the SLC and any consequent adverse effects to the public interest. The Tribunal noted that it had already examined and rejected each of Sky’s and Virgin’s challenges to the SLC remedy: see [2008] CAT 25. Consequently, the validity of the existing SLC remedy was unaffected by the Tribunal’s findings or the relief already granted in respect of the plurality issue.
The second question concerned whether the Tribunal should remit the plurality issue for reconsideration. In respect of that question, the Tribunal concluded that remitting the plurality issue to the Commission and/or the Secretary of State for further investigation would serve no useful purpose, as whatever their subsequent findings on that issue, no additional or different remedy would be recommended or imposed. The Tribunal was satisfied that the position which existed prior to Sky’s acquisition of 17.9% of the shares in ITV would be restored by the existing remedy as far as the plurality of media controllers was concerned. The existing SLC remedy would therefore remove any effects of the assumed insufficiency of plurality. The Tribunal also noted that referring the plurality issue back to the Commission and Secretary of State would involve a very considerable further period of uncertainty for ITV and other interested parties, as well as further substantial consumption of the Commission’s, the Secretary of State’s and other people’s time and financial resources. The Tribunal therefore refused Virgin’s and Sky’s applications that the plurality issue be remitted to the Commission and the Secretary of State.
