Judgment on costs following the setting aside of the OFT’s decision.
The Tribunal held that where the OFT found itself unwilling or unable to support a decision before the Tribunal, the proper course was to notify the Tribunal and the other parties as soon as possible. The OFT had conceded, at a case management conference held on 31 March 2006, that the way in which it reached its conclusions on the infringement in its defence differed from that in its original decision. However, the OFT failed to notify its intention to withdraw its decision until just before the hearing on 19 June 2006. In those circumstances, the costs after 31 March 2006 need not have been incurred.
The Tribunal found that the OFT’s decision to continue despite the changes to its case was foreseeably risky and held that the appellants and the intervener were entitled to their reasonable and proportionate costs incurred after 31 March 2006.
The Tribunal considered that, although the appellants and the intervener, Visa, had been put to expense, the outcome of the proceedings had not been commercially disadvantageous for them and, accordingly, the Tribunal held that the costs up to and including 31 March 2006 should lie where they fell.
