Cityhook Ltd & Anor, R (on the application of) v Office of Fair Trading & Ors

In paragraph 188 of the judgment I indicated that I would receive further representations on the precise form of the order in the light of my decision on the merits. I have received written representations on behalf of the Claimants, the OFT and on behalf of British Telecommunications PLC.

There was some, but not total, agreement between the parties on the form of the order. The order that appears below gives effect to my decision and, accordingly, is the order that should be drawn up. I should say that ordinarily I would not have made the mandatory orders reflected in paragraphs 3 and 4 and would have been content to accept that the OFT would have acted in accordance with the declaration in paragraph 2 and any further consequential declarations. However, the parties have agreed that orders of that nature should be made and, accordingly, I am content to do so.

The Claimants sought their costs on the basis that they had secured relief in the terms of paragraph 2 and the consequential paragraphs. The OFT’s response was that the Claimants had not succeeded in obtaining their primary objective in the case, namely, that the Contested Decisions should be quashed. In my view, the OFT’s argument on this issue was correct and on that basis I was not inclined to order that the OFT should pay the Claimants’ costs. However, I do not think that the Claimants should be penalised by having to pay any part of the OFT’s costs – and indeed the OFT did not seek an order for costs against the Claimants. Accordingly, in my view, the right order is that there should be no order as to costs as between the parties. That is to include the position of the Interested Parties, none of whom sought any orders for costs in any event.

The terms of the order to made are as follows:

Save as is provided in paragraphs 2, 3 and 4 below, the Claimant’s application for judicial review to quash the decisions notified in the letter from the Office of Fair Trading (“The OFT”) to the Claimant’s dated 23 June 2006 (“the Contested Decisions”) is dismissed.

The OFT acted unlawfully insofar as, at the time when it adopted the Contested Decisions, it did not invite OFCOM to consider whether or not it wished to agree to the transfer of the cases which are the subject of the Contested Decisions (“the Collective Boycott Case” and the “Collective Setting Case”) from the OFT to OFCOM pursuant to regulation 7(1) of the Competition Act 1998 (Concurrency) Regulations 2004 (SI 2004 No. 1077).

The OFT shall invite OFCOM to consider whether or not it wishes to agree to the transfer of the Collective Boycott Case and the Collective Setting Case from the OFT to OFCOM pursuant to the aforesaid regulation and shall, if asked by OFCOM to do so, provide OFCOM with such information and documentation in the possession or control of the OFT as will enable OFCOM to make an informed decision on whether it wishes to agree to a transfer as aforesaid.

The OFT shall provide a letter to Cityhook Limited and to the interested parties informing them of the steps that have been taken in accordance with paragraph 3 and the outcome reached.

There shall be liberty to apply in respect of paragraphs 3 and 4 above.

The parties and the interested parties shall each bear their own costs.