25 May 2022
On 25 May 2022, the Supreme Court handed down an important judgment relating to appeals against decisions by public authorities (Pfizer and Flynn v CMA  UKSC 14). There is no generally applicable principle that all public bodies should enjoy protected status as parties to litigation where they lose a case they have brought or defended in the exercise of their public functions in the public interest. Instead, it is important that a court or tribunal considers the risk that there will be a ‘chilling effect’ on the conduct of a public authority, if costs orders are made routinely against it in those kinds of proceedings.
The Competition Appeal Tribunal (“CAT”) was right to distinguish Competition Act 1998 (“CA98”) appeals from appeals against public authorities where there might be a risk of a chilling effect. The starting point in CA98 appeals is that costs follow the event, but the question of success is generally considered on an issue-by-issue basis.