Ruling of the Tribunal in relation to applications for costs by Tesco and the Competition Commission.
The Tribunal considered that the appropriate starting point for dealing with costs of a judicial review under section 179 of the Enterprise Act 2002 is that a successful party will normally obtain a costs award.
In the present case, Tesco had established that the Commission’s decision to recommend the adoption of the competition test was invalid. The Tribunal therefore started from the position that an award of costs in favour of Tesco was likely to be appropriate.
The position was different so far as the argument on relief was concerned. In that respect Tesco sought unsuccessfully to prevent the Commission from having an opportunity to reconsider the recommendation in question by arguing that the Tribunal either could not or should not refer the matter back to the Commission. The Tribunal therefore considered it was appropriate that an order for costs relating to the relief issues should be made in favour of the Commission.
The Tribunal considered that a lump sum costs award would achieve a just result in this case. The Tribunal noted that any sum awarded in respect of costs is fair, reasonable and proportionate as between the parties and generally. Having considered the amount of the costs claimed by each party, the Tribunal decided to make a costs award in Tesco’s favour of £342,000. As against that the Tribunal awarded the Commission its costs in relation to the relief issues and argument on permission to appeal in the sum of £30,000. The Tribunal therefore ordered the Commission to pay the net amount of £312,000 in respect of the costs claimed by Tesco.
