Public Law

From 21 March, organisations being formally investigated by the OFT under the Competition Act 1998 will have recourse to a new Procedural Adjudicator to assist with procedural disputes. The post will be held by Jackie Holland, Director of Competition Policy at the OFT.

The news will be welcomed by the many businesses which had previously called for the appointment of a “Hearing Officer” in this context. It is important to note, however, that there a number of restrictions on what the Procedural Adjudicator will be able to do.

The Senior Responsible Officer (“SRO”) remains the first port of call for procedural disputes. Only after this stage can a party seek to involve the Procedural Adjudicator – and only if the dispute relates to “significant procedural decisions” such as deadlines to respond to information requests. There is a tight deadline of five working days from the SRO’s decision in which to make an application to the Procedural Adjudicator. In coming to a decision, the Procedural Adjudicator will apply the high bar of judicial review principles – in other words, she will consider:

“whether the case team’s decision was unreasonable or irrational, whether the case team has respected the necessary procedural requirements and/or whether the party’s rights of defence have been respected.”

In addition, as acknowledged by the OFT, the role of Procedural Adjudicator is narrower than that of the Hearing Officer in investigations by the European Commission.

Nonetheless, the introduction of a Procedural Adjudicator (albeit on a trial basis at the moment) is no doubt a positive development. The OFT’s aims include speeding up the resolution of procedural disputes and building confidence in the fairness and robustness of its procedures in Competition Act cases.

Whether or not these aims are achieved will be evaluated in a year’s time, when a decision will be taken on the future of the role. In the meantime, the OFT have warned that any attempt by parties to use the new role to delay investigations may result in suspension/discontinuation of the post.