Judgment on an urgent ex parte on notice application for interim relief made by Wm Morrison Supermarkets plc (“Morrisons”) pursuant to Rule 61 of the Tribunal Rules to suspend the decision of the Competition Commission (“the Commission”), taken pursuant to an order made on 23 April 2009 in accordance with section 84 of the Enterprise Act 2002 (“the Act”), to approve J Sainsbury plc (“Sainsbury”) as the Redevelopment Option Approved Purchaser of the site at 78 Uxbridge Road, Slough owned by Tesco plc (“Tesco”). In view of the urgency, the applications was made before the substantive application for review under section 120 of the Act had been lodged. A draft of the proposed application accompanied the interim relief application.
After a hearing attended by Morrisons, Sainsbury, Tesco, as well as the Commission, the President refused to grant the application for interim relief. He held that the grant of interim relief was always a matter of discretion and in the exercise of that discretion the Tribunal must take account of all relevant circumstances, including the urgency of the matter, the effect on the party concerned if relief was not granted, and the effect on competition if the relief was granted.
The President considered that the draft application submitted by Morrisons contained arguments which could conceivably have had merit and therefore there was likely to be a ground of challenge to the Commission’s decision which was properly arguable. He was also mindful that Morrisons was prepared to offer a cross undertaking in damages to Sainsbury and Tesco which would have been likely to have compensated them for losses they might have suffered by the delay in completing the purchase pending the resolution of the proposed substantive application. However, by its delay in seeking interim relief Morrisons had allowed those companies to alter their position by entering into a legally binding contract for the sale of the site. Morrisons was fully aware that unless Tesco and Sainsbury were notified at the earliest opportunity they would almost certainly change their position by exchanging contracts. The President did not consider that the effect on competition of making an order was a determinative factor.
Accordingly interim relief to suspend the Commission’s decision was not appropriate and the application was refused. Morrisons was ordered to pay the costs of the other parties.
