1274/1/12/16 (IR) Flynn Pharma Limited and Another v Competition and Markets Authority (Interim Relief)

Application by Flynn Pharma Limited and Flynn Pharma (Holdings) Limited (together, “Flynn”) for interim relief under Rule 24 of the Competition Appeal Tribunal Rules 2015 in respect of a decision of the Competition and Markets Authority (the “CMA”) of 7 December 2016 (Case CE/9742-13: Unfair pricing in respect of the supply of phenytoin sodium capsules in the UK) addressed to Pfizer Limited and Pfizer Inc (together, “Pfizer”) and Flynn (the “Decision”).

In the Decision, the CMA found that Pfizer and Flynn have infringed the prohibition in section 18 of the Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union by imposing unfair prices for phenytoin sodium capsules (an anti-epilepsy drug) manufactured by Pfizer in the UK. The CMA gave directions to Pfizer and Flynn with regard to the future pricing of phenytoin sodium capsules (the “Directions”). By its application, Flynn sought a suspension of the Directions insofar as they apply to Flynn, pending the final determination of Flynn’s appeal against the Decision.

The application was heard on 17 January 2017. The Chairman handed down a judgment ([2017] CAT 1) dismissing the application on 19 January 2017.

On 23 June 2017 the Chairman issued a ruling reserving costs of the application until after the substantive appeal of Flynn had been determined.

On 29 March 2019 the Tribunal gave a ruling in relation to costs ([2019] CAT 9).  On 21 May 2019 the Tribunal granted permission to the CMA to appeal the Tribunal's ruling on costs ([2019] CAT 16). The appeal was heard by the Court of Appeal on 29-30 April 2020. Judgment was handed down on 12 May 2020 ([2020] EWCA Civ 617).

The Chairman made an order on 27 July 2020 staying the detailed assessment of costs.