The Competition Appeals Tribunal (CAT) has granted applications for six search warrants under Section 28(1)(b) of the Competition Act 1998, in a case which illustrates how such applications are dealt with.
The Competition and Markets Authority (CMA) had been conducting investigations into suspected bid rigging of tenders for the supply of roofing and construction services to schools. It applied to the CAT for warrants to enter and search the business premises of seven companies alleged to have been involved.
The Act was amended in 2014 to allow applications for search warrants to be made to the CAT. Previously, such applications had to be made to the High Court. The CAT Rules were never amended to specify the procedure for applying for search warrants, but the CAT noted that it has, in practice, adopted the procedure set out in the Practice Direction for warrants that applies to the High Court. The CAT considered that it would be perverse if the requirements for an application before it were less stringent than for an equivalent application before the High Court.
The CAT observed that, for a warrant to be issued, it must be satisfied that there are reasonable grounds for suspecting that there are documents on the relevant premises which the CMA has the power to require to be produced under Section 26 of the Act. It must also be satisfied that the documents would be concealed, removed, tampered with or destroyed if they were required to be produced.
The CAT considered that the CMA had reasonable grounds to suspect what would clearly be a serious infringement of the Act, and the requirements for starting an investigation were thus satisfied. The CMA therefore had the power under Section 26 to seek documents for the purposes of the investigation. There were good grounds to think that the companies operated from the specified premises and that collusion which would inevitably involve communication between the participants was continuing. The CAT was therefore satisfied that there were reasonable grounds to suspect that there would be relevant documents on the premises.
The CAT considered previous cases on the question of whether documents would be concealed. In one case, the CMA had successfully argued that, if there were reasonable grounds to suspect a secret cartel, it would be permissible to infer that that condition was met. The CAT also referred to an observation in an earlier case that, in such situations, there would be a strong motive for hiding the truth and the relevant material would be relatively easy to conceal. The CAT concluded that the condition was satisfied and granted the applications.
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