Judgment on an appeal against an OFT decision finding that the appellant, together with a number of other contractors, had colluded in relation to the making of tender bids for flat roof and car park surfacing contracts using mastic asphalt, thereby infringing the Chapter I prohibition of the Competition Act 1998.
The Tribunal unanimously dismissed the appeal on liability.
The Tribunal held that the appellant had not put forward a plausible explanation that would displace the inferences that the OFT had drawn to the effect that the appellant had been involved in collusion. Even if the Tribunal had accepted Makers’ own version of events, it would have upheld the OFT’s decision on liability.
In respect of the penalty aspects of the appeal, the Tribunal (i) unanimously found that the OFT's application of a minimum deterrent threshold was appropriate, although the Tribunal considered that the details of the OFT’s methodology should have been included in the original decision; and (ii) by majority, held that the penalty should not be reduced to take account of the fact that penalty imposed on another contractor (who had not appealed) was lower than it should have been on the basis of a mistake by the OFT.
