CMA Filed An Application To Delay The Hearing That Was Denied By CAT
We consider that the CMA has not paid sufficient heed to the true public interest in this case – which is the swift resolution of Microsoft's Notice. The CMA has chosen to re-visit a matter already decided (namely, an end July/early August hearing and not an October hearing) when there has been no material change of circumstance. Furthermore, the CMA has made this application indefensiblya late, with no explanation. Finally, there has been no attempt by the CMA to explore – either with Microsoft or with the Tribunal – ways in which the burden might be eased. In speedy processes like this, the Tribunal stands ready to assist – where it can – to ensure that inappropriate burdens are lifted. It is disappointing that such dialogue has not taken place in this case.
24. Notwithstanding the foregoing concerns about this application, and the fact that many of the CMA's problems appear to be self-induced, we ask ourselves this: Is there a material risk, given the Tribunal's appreciation that this an expedited process with burdens on all, that the CMA's team is unable properly to represent the CMA at the substantive hearing such that a fair hearing is not realistically possible? We remind ourselves that this team – instructed by the UK's national competition authority, hugely experienced and the drafter of this Decision – comprises a counsel team of Sir James Eadie, KC, Hanif Mussa, KC and no less than two experienced junior counsel. Further, there remains a month from the date of the application (28 June) to the proposed start date for the hearing (28 July). The matter is significant and there is a large amount of material for any new counsel to digest, but we anticipate that a month allows ample time for that to happen – provided the CMA selects counsel with appropriate availability to prepare, especially given the support available from within the CMA and from Its existing counsel team. The question answers itself: this is a team that should have sufficient time to ensure that the CMA's defence to the application is appropriately conducted.
25. The application is refused. This ruling is unanimous.
