Bacon: Current CAT president
The Competition Appeal Tribunal (CAT) has decided against relaxing its conflict of interest rule for panel members and chairs.
Following a consultation, the CAT – whose president is Mrs Justice Bacon – said it was “not convinced” that the risk of conflicts of interest would be “sufficiently mitigated by case-by-case recusals”.
It consulted on the conflict rule for the first time in its history last year to inform future recruitment of panel members, “taking account of the desirability of diversity and regional representation”.
Under the existing rule, members and chairs of the CAT and deputy High Court judges nominated to sit as chairs must not engage “in any activities concerning competition cases in the UK or advise on cases concerning sectoral regulation that could come before the tribunal”.
This generally included part-time consultancy work but not purely academic research, teaching or writing.
Members are required to relinquish their appointment if they want to advise clients in those fields, whether in the private or public sectors.
However, where a barrister or solicitor does not carry out relevant work but is a member of a chambers or firm which does, that may not prevent appointment if the lawyer is “sufficiently distant” from that work that the conflict risk is “manageable”.
Those supporting relaxation of the rule – and the CAT did not say if this was a minority or majority of the responses – argued that either the risk of apparent bias arising was low and was “outweighed by the benefit of having members with live advisory experience” – or that the risk could be “sufficiently mitigated”.
This would either be with case-by-case recusals based on guidance or a code of conduct on conflict risks, or “by confining affected members and chairs to cases concerning matters outside the area in which they practised”.
Those opposed to relaxation, and this included all the CAT chairs who responded, argued that because the tribunal was “distinguished by its specialist caseload and the relatively small and specialist community of lawyers and experts who serve it, the appointment of any current practitioner would give rise to concerns of unfair inside advantage”.
The expansion of the tribunal’s jurisdictions over recent years “was also noted”, as was the fact that competition disputes may involve any sector and affect a wide range of companies.
“The tribunal’s judgments were therefore considered to have a greater impact than those in many types of general commercial or chancery litigation.”
Opponents also argued that CAT cases sometimes lasted a long time, which was “thought to increase the risk of conflict or apparent bias for current practitioners, who might be required not to take on work for clients who pose a conflict risk for an extended period”.
There was also a concern that the presence of practitioners “would hinder frank internal discussions among members”.
The CAT said that while it recognised the benefit of having chairs and ordinary members with current advisory experience, it regarded the issues identified by opponents of change as “being compelling” and so it would not change the rule.
In particular, the “long duration” of many of its cases, the “fact that similar issues of substance and procedure” arose across most cases and “the specialist nature of the work”, meant that the risk of conflicts was “greater than may normally be the case for other areas of the judiciary where current practitioners are often appointed as fee-paid judges”.
The CAT said: “The tribunal was not convinced that this risk would be sufficiently mitigated by case-by case recusals.
“The tribunal accords prime importance to the avoidance of any material risk of actual or perceived conflict in its operation which could damage to its reputation for impartiality”.
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