Abstract
Legal maxims can be of great help in establishing rules or in turning inchoate ideas into something concrete. The phrase “fiat justitia ruat caelum” (let justice be done though the heavens fall) seems to tell the judge that his or her task is to do justice and not to worry too much about the wider consequences. The implications of this maxim are the subject of this short paper.
Chairman of the Competition Appeal Tribunal.
As may be presumed, any opinions expressed in this paper are entirely the author’s own, and do not in any way represent the views of the CAT or of any other body.
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Notes
- 1.
To be accurate, William Murray, (1704–93) Earl of Mansfield, was a Scotsman who was an English judge.
- 2.
Rex v John Wilkes, Esq. 7 February 1770 (1770) 4 Burrow 2527, 98 E.R. 327.
- 3.
See Rudé Wilkes and Liberty (1962), p. 57.
- 4.
At nos. 28–29.
- 5.
BAA Ltd v Competition Commission (no 1) [2009] CAT 35.
- 6.
Ibid. paragraph 98.
- 7.
Ibid. paragraph 264.
- 8.
BAA Ltd v Competition Commission (no 2) [2012] CAT 3 – see the later discussion at Sect. 2.1 below.
- 9.
House of Lords European Affairs Committee, 15th Report of Session 2006-07 “An EU competition court”, published on 23 April 2007.
- 10.
[2003] EWHC 1510 (Ch).
- 11.
Park J.
- 12.
[2005] EWHC 1074 (Ch).
- 13.
Ibid paragraphs 47–49.
- 14.
Ibid, paragraph 51.
- 15.
See also Barling J’s decision in Sainsbury v Mastercard 2015] EWHC Civ 3472 (Ch) to transfer the action from the High Court to the CAT for a discussion of the merits of the CAT as a specialist tribunal.
- 16.
Merger Action Group v SoS for Business, Enterprise and Regulatory Reform [2008] CAT 36. The case took 12 days from registration to judgment. A recent innovation is the “fast track” procedure, under which costs and witness evidence can be restricted and a fixed time set for the case to come to trial. See Breasley Pillows [2016] CAT 8 and Socrates v Law Society [2017] CAT 10.
- 17.
The CAT currently has some 32 Ordinary (non-judicial) Members, including professional lawyers, accountants and economists drawn from throughout the United Kingdom.
- 18.
The general courts use this procedure also, but the questioning of expert economists is not an easy task for a non-specialist judge.
- 19.
BAA Ltd v Competition Commission (No 1) loc cit.
- 20.
BAA Ltd v Competition Commission (no 2) [2012] CAT 3.
- 21.
As with the case of Courage v Crehan, referred to earlier.
- 22.
Office of Fair Trading v Somerfield Stores Ltd [2014] EWCA Civ 400, para. 25.
- 23.
Société Coopérative de Production Seafrance SA v CMA [2015] UKSC 75, para. 44.
- 24.
Para 3 of Schedule 8 to the Competition Act 1998.
- 25.
See e.g. BT v OFCOM [2010] CAT 17, para. 76.
- 26.
See the CAT’s Rules of Procedure 2015 Rule 19(2) and (3) which provide for the appointment of experts by the Tribunal and the provision to the Tribunal of submissions, information and documents. How far it is able to make use of these powers will depend on the skill, experience and aptitude of the members of the particular Tribunal panel.
- 27.
Note that the decision itself may go some way to address the immediate consequences. Whilst in judicial review, the normal outcome is quashing and remittal to the authority, the CAT may also do this in full merits cases, rather than substitute its own decision, where it believes that the original decision may be valid in essence or in part but requires further work to ground it. See the CAT’s approach in Aberdeen Journals no 1 [2002] CAT 4.
- 28.
These value judgments may also be reflected in guidance to which the CAT must have regard, for example in relation to penalties.
- 29.
See e.g. Telefónica 02 UK Ltd v BT [2012] EWCA Civ 1002 (Court of Appeal – the 08 Numbers case), BSkyB v OFCOM [2012] CAT 20 (Pay TV no 1) and BT v OFCOM (Ethernets) [2014] CAT 14. The CAT is expressly not to be regarded as “a fully equipped duplicate regulatory body waiting in the wings just for appeals.” per Jacob LJ in T-Mobile (UK) Ltd v OFCOM [2008] EWCA Civ 1373.
- 30.
BSkyB v OFCOM [2012] CAT 20.
- 31.
Ibid, para 87.
- 32.
Full merits appeals against competition authority decisions in the UK have in the past been relatively few, although that the trend is increasing as the CMA takes more competition infringement decisions.
- 33.
Imperial Tobacco Group PLC and others v OFT [2011] CAT 41.
- 34.
Tesco Stores Ltd v OFT [2012] CAT 31.
- 35.
BSkyB v Ofcom [2012] CAT 20 (Pay TV no 1). We have noted this was a regulatory/competition law hybrid case.
- 36.
The direct consequences included an appeal to the Court of Appeal, a remittal to the CAT, disputes about the composition of the remittal panel, appointment of a new case Chairman, a settlement, a further decision by Ofcom and an appeal against that decision to the CAT, a further CAT decision, and an appeal to the Court of Appeal that was then discontinued. The indirect consequences included a government review of the regulatory appeal system and a change in the standard of review applied to Ofcom decisions from full merits to judicial review. It is hard to see how the heavens could have fallen more comprehensively.
References
Competition Appeal Tribunal Rules of Procedure (2015)
House of Lords European Affairs Committee, 15th Report of Session 2006-07 “An EU competition court”, published on 23 April 2007
Rudé G (1962) Wilkes and liberty. Oxford University Press, Oxford, p 57
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Freeman, P. (2019). “Fiat Justitia ruat caelum”. Is This a Good Guide to the Role of a Specialist Appeal Court Judge?. In: Selvik, G., Clifton, MJ., Haas, T., Lourenço, L., Schwiesow, K. (eds) The Art of Judicial Reasoning. Springer, Cham. https://doi.org/10.1007/978-3-030-02553-3_22
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