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OFT to appeal merger reference judgment

PN 169/03     11 December 2003

The OFT has today asked the Competition Appeal Tribunal (CAT) for permission to appeal to the Court of Appeal the judgment of the CAT in IBA Health v Office of Fair Trading. This judgment quashed the decision of the OFT not to refer to the Competition Commission the proposed acquisition of Torex plc by iSOFT plc.

The OFT's application is founded on the basis that the CAT's judgment contains two broad errors of law:

a. that the CAT has wrongly interpreted the Enterprise Act test for reference of mergers to the Competition Commission; and

b. that the CAT has also erred in its understanding of the nature and scope of judicial review of OFT merger decisions.

The OFT has asked for its application to be dealt with expeditiously given the number of current OFT merger cases, and the broader public interest in resolving the commercial and legal uncertainty that now exists.

Pending the outcome of the appeal process, the OFT will apply the CAT's interpretation of the statutory test for reference of mergers to the Competition Commission, as stated in our press statement of Friday 5 December (see PN 164/03).

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