Navigating the regulatory landscape: The CMA wins legal challenge over warrants to search homes

In February 2024, we discussed (see our blog post The powers of the Competition and Markets Authority to search homes) a significant judgment of the UK Competition Appeal Tribunal (CAT) regarding the powers of the Competition and Markets Authority (CMA) to search an individual's home.

The CMA issued a judicial review challenge against the CAT's decision and the High Court has now ruled that the CAT misapplied the law when it refused the CMA's request for a warrant to search domestic premises.

The CAT's decision

To recap, in October 2023, the CMA applied for four warrants to search business and domestic premises in connection with an investigation into suspected anti-competitive conduct.

The CAT granted the warrants for the business premises, but it refused the warrant for the domestic premises. The CAT declined to grant the warrant for the domestic premises on the basis that the CMA could not provide specific evidence demonstrating that an occupier of the property had a "propensity" to destroy physical or electronic documents held on their property. The suspected involvement of the occupier in a secret cartel was not sufficient to justify the warrant.

The High Court's judgment

The CMA subsequently issued a judicial review challenge to the CAT's decision. The CMA was concerned that the CAT's judgment would significantly hamper the CMA's ability to gather the necessary evidence to effectively investigate and enforce against secret cartels, particularly given the CAT’s indication that the warrants judgment was a guideline case to be followed in the future.

In its judgment, the High Court agreed with the CMA's argument that the CAT had erred in law in finding that specific evidence of a "propensity" to destroy electronic or physical documents was always required for a domestic search warrant.

The High Court also ruled that the CAT had erred in its declaration that the decision was a guideline case, and in its order requiring the CMA to disclose information to warrant recipients.

The CMA has welcomed the judgment, commenting that the original CAT judgment risked seriously undermining its ability to enforce effectively against cartels, especially given the increase in remote-working.

If you would like to discuss any of the issues raised in this blog, please get in touch with our team.