The mysterious case of the successful appeal and the missing costs award: Competition and Markets Authority v. Flynn Pharma Limited

Abstract

In May 2020 the Court of Appeal gave judgment in Competition and Markets Authority v. Flynn Pharma and Pfizer, which adjusted the starting point for costs awards following successful appeals of Competition and Markets Authority decisions. Following this judgment, such awards by the Competition Appeal Tribunal must start from the position that no order as to costs should be made against the CMA, rather than the standard approach of ‘costs follow the event’ that had been the CAT's established practice. This article examines the rationale for the CAT's past practice, the basis for the Court of Appeal's judgment altering that approach, and considers the potential implications the judgment may have.