Judgment on an application pursuant to section 120 of the Enterprise Act 2002 for judicial review of a decision of the OFT not to refer the proposed acquisition of East Anglian Pharmaceuticals Limited by Phoenix Healthcare Distribution Limited to the Competition Commission.
The Tribunal allowed the application, quashed the OFT’s decision and remitted the matter to the OFT to take a fresh decision. The remittal to the OFT was not “at large” but was confined to the evidential challenges made by UniChem before the Tribunal to the OFT’s findings in paragraphs 34 to 38 of the decision.
The Tribunal held that the OFT had made findings of primary fact central to its decision concerning the distribution system of UniChem that were not put to UniChem during the OFT’s investigation of the merger and were subsequently challenged by UniChem in evidence before the Tribunal.
The Tribunal found that the evidence relied upon by the OFT for its conclusions was not adequate in the face of the challenges made to them and the Tribunal was not in a position to say that UniChem’s evidence was obviously incredible or irrelevant. The Tribunal was not itself able, in the context of judicial review proceedings, to resolve disputed issues of fact which had not been properly considered by the OFT.
The Tribunal also found that, in circumstances where the OFT had placed material reliance on facts concerning UniChem, the OFT’s failure to cross-check material facts submitted to the OFT by the merging parties about UniChem amounted to procedural unfairness.
