When a public body makes a mistake in its treatment of one person, can fairness require it to treat other people in the same way – even if that means amplifying the effects of the mistake?
According to the Court of Appeal in the latest instalment of the tobacco litigation, the answer is yes. The history of the case is well-known. The Office of Fair Trading’s decision, that various manufacturers and retailers had committed an infringement in the setting of tobacco prices, collapsed on appeal to the CAT in 2011. Gallaher and Somerfield, who had entered into early resolution agreements (“ERAs”) with the OFT and therefore decided not to appeal the infringement decision, then sought to appeal out of time. The Court of Appeal rejected their attempt in 2014, emphasising the importance of finality and legal certainty (see my blog here).
Undeterred, Gallaher and Somerfield pressed on with a different aspect of their case. They had discovered that another company, TM Retail, had been assured by the OFT when it entered into its ERA in 2008 that, in the event that any other party succeeded on appeal, TM Retail would have the benefit of that appeal. The OFT’s assurance to TM Retail was based on a mistaken view of the law, since a successful appeal by one addressee of a decision does not normally let non-appellants off the hook. However, following the successful CAT appeal in 2011, the OFT decided to honour its assurance to TM Retail. TM Retail’s penalty was repaid (although for reasons which need not detain us the OFT has refrained from calling it a ‘repayment’). But the OFT also decided that, given that it had not given any similar assurance to Gallaher or Somerfield, it would not repay their penalties.
Gallaher and Somerfield challenged the OFT’s decision on fairness grounds. The Court of Appeal has now held that the OFT, now the Competition and Markets Authority, is obliged by principles of fairness to treat Gallaher and Somerfield in the same way as it treated TM Retail. That will mean repaying their penalties, at a cost of something north of £50 million.
The Court of Appeal’s decision recognises that the requirements of fairness will depend on all the circumstances of the case. The decision is therefore based very heavily on the particular facts of this case. Of particular importance was the fact that all ERA parties were told that they would be treated equally. They therefore had a strong expectation of equal treatment.
Nonetheless, the case raises some important questions.
Firstly: what is the significance of detrimental reliance in an equal treatment case? In cases concerning legitimate expectations, itself a branch of the law of fairness, it is generally the case that a party will not succeed unless he shows that he has suffered some detriment in reliance on the expectation in question.
In this case, Gallaher and Somerfield could not say that the OFT’s assurance to TM Retail was what made them decide not to appeal against the infringement decision. They didn’t know about the assurance when they chose not to appeal. The Court of Appeal answers this point by remarking at [44] that:
“the only reason why the appellants could not have claimed that they relied on assurances of the type given to TM Retail was because such assurances had not been given to them …”
But the question is surely not whether Gallaher and Somerfield could “claim” to have relied on assurances: it is whether or not they did in fact rely on such assurances. They did not. The absence of such a factor must be relevant to an assessment of what is fair in all the circumstances.
Secondly: what is the significance of the fact that assuring equal treatment will end up costing the public purse a huge amount of money?
The Court does not go into this question in any detail. It rejects, as a statement of general principle, the contention endorsed by the High Court that a mistake should not be replicated where public funds are concerned. Instead all depends on the circumstances. But the Court’s discussion of the circumstances does not consider the significance of the impact on the public purse.
Of course, the point cuts both ways because the heavy impact on the public purse if the penalties are repaid is the mirror-image of the impact of the unequal treatment on Gallaher and Somerfield if the penalties are not repaid. There is, however, an important question of principle as to how to balance the desirability of ensuring equal treatment, on the one hand, against the unattractiveness of requiring public bodies to magnify their errors at great expense, on the other. The Court of Appeal explains in detail why the former consideration should weigh heavily in favour of repayment, but it remains unclear whether, or in what circumstances, such factors may be counter-balanced by public expense considerations.
Competition Bulletin 