UK: It’s not fair! – balance between protecting confidentiality and assuring procedural fairness

The UK Competition Commission, in its final months before being absorbed into the new Competition and Markets Authority, has had a procedural decision overruled by the Competition Appeal Tribunal (Britain's specialist judicial body that oversees decisions by the competition authorities). In the case, BMI Healthcare and others v Competition Commission,38 the Tribunal held that the Competition Commission had been unfair in the balance it struck between, on the one hand, allowing parties under investigation to see information relevant to their case and, on the other, protecting confidential business information. The Tribunal held that the Competition Commission had erred too much in favour of protecting confidentiality, prejudicing the rights of the parties under investigation.


The case arose in the context of the UK's "market investigations" regime. This allows the UK competition authorities to investigate entire sectors to see whether any features of that sector (or market) have adverse effects on competition. If, on a full investigation (which typically lasts a year or two), the Competition Commission finds that there are such adverse effects, it can order changes to remedy those adverse effects - ranging from orders to modify business practices, to requirements that companies dispose of business units or split up. (For example, BAA, the operator of the three main London airports, was recently ordered to reduce the number of London airports under its control.)

The particular market investigation in this case concerns the private healthcare sector in Britain, and is ongoing. The Competition Commission began its investigation in April 2012 and is due to complete it in April 2014. In September 2013, it published its "provisional findings", indicating that various characteristics of the private healthcare had adverse effects on competition – including high barriers to entry for private hospitals and weak competitive constraints in many local markets such as central London. It also proposed, provisionally, that three of the major private hospital groups – BMI Healthcare, HCA and Spire – be required to sell off some of their hospitals by way of remedy.

Just a few weeks after the Competition Commission published its provisional findings, BMI, HCA and Spire all lodged an appeal to the Competition Appeal Tribunal claiming that the Competition Commission had treated them unfairly by not giving them sufficient access to relevant information. The Tribunal reached its decision on their appeal on October 2, 2013.

The issue – the rules on disclosure, confidentiality rings and data rooms

The appeal concerned procedural fairness. Indeed, the only grounds on which appeals may be lodged against decisions of the UK competition authorities in market investigations (and in merger control) are "judicial review" grounds. This is much more limited than a "full merits" appeal. It allows decisions to be overturned only on the basis of procedural unfairness, or of the authority exceeding its legal powers, or of the substance of the decision being "irrational" (i.e., so unreasonable that no reasonable public authority could have reached the decision).

In the BMI appeal, the appellants claimed that the Competition Commission had shown procedural unfairness towards them in unfairly limiting their rights to see relevant material, giving disproportionate and excessive protection to that material on grounds of business confidentiality.

They founded their appeal on both (i) the English common law judicial review principle of "natural justice", which includes a right to be properly consulted, and (ii) the specific statutory regime governing consultation, disclosure and the protection of confidential information in the UK legislation on market investigations and merger control, the Enterprise Act 2002.

As regards the statutory regime, four main elements provide a delicate balance between the right of the party being investigated to have access to relevant information and the right of the "owner" of that information to have confidential business secrets protected from disclosure.

First, there is a presumption of procedural fairness towards the parties being investigated. The legislation, the Enterprise Act 2002, requires the competition authority conducting a market investigation (a) to consult persons (individuals or companies) on whom its decision is likely to have a substantial impact, and (b) to give them reasons for that decision – in both cases "so far as practicable".

Second, there is respect for the confidentiality of business information.

  • The statutory duty to consult and give reasons is qualified by the proviso "so far as practicable", and this includes having regard to (i) timetable and (ii) confidentiality.
  • The legislation also provides for the protection of confidential information, saying that information not in the public domain that relates to a business, or an individual's affairs, should not be disclosed.

Third, the protection of confidential information is itself subject to a proviso – namely, that it may be disclosed "for the purpose of facilitating the exercise by the authority" of its statutory functions.

Fourth, even this disclosure is subject to three considerations. Information should be excluded from disclosure where:

  • Disclosure is contrary to the public interest;or
  • Disclosure "might significantly harm" legitimate business interests of the company concerned (or, in the case of an individual, the individual's interests); or
  • Disclosure is not "necessary for the purpose for which the authority is permitted to make the disclosure".

Practical application

The UK Competition Appeal Tribunal held that the Competition Commission had incorrectly applied the statutory regime, and in common law terms had denied the appellants natural justice, in being excessively restrictive in granting them access to relevant confidential business information.

Confidentiality rings and confidential data rooms

The Tribunal recognised the legitimacy of striking a balance by way of "confidentiality rings". Under these, disclosure to a party is often limited to the party's external professional advisers in the case – for example, its lawyers and economic advisers who have to give a binding undertaking that they will not disclose the information to anyone else and that they will only use the information in specified ways.

A variation on this is the confidential data room, a secure location in which the confidential documents are held, and to which only external advisers are granted admission (again, on the basis that they give various undertakings).

The Tribunal made clear its acceptance of these measures in principle:

"We recognise that market investigations involve... considerable amounts of very confidential material, and if that material is not appropriately safeguarded, confidence in Commission investigations will be eroded and – quite possibly – damage done to the operation of markets because of the market sensitivity of information involved.39 ... The undertakings given by the professionals who participate in confidentiality rings and data rooms to do, or not to do, certain things are essential to the operation of these confidentiality rings and data rooms. "40

The rules of access

On the facts of the case, the UK Competition Appeal Tribunal saw nothing wrong with the Competition Commission putting the confidential information in a confidential data room, to which access was limited to external professional advisers who had to sign undertakings. But it found those undertakings too restrictive, and said that – given that this was a data room and therefore a secure location – it was unfair that:

  • The advisers were not allowed to make notes in the data room about the documents they found there – given that the making of notes is "plainly required if they are to make effective use of their access" to the data room;
  • Conversations in the data room had to be as brief and quiet as possible, which meant that "there was no real way in which the advisers could discuss points amongst themselves";
  • Internet access was unavailable, and the advisers were prohibited from bringing in their own electronic devices, so that they had no access to other material that they might need to look at; and
  • The period of time allowed for access to the data room (9 a.m. to 5 p.m. on just two consecutive days) was "unreasonably short"; the Tribunal thought that, as a "general rule of thumb, a data room ought to be open at reasonable business hours up until the end of the consultation period, and ought to provide for multiple visits".41

Wider application

These helpful guidelines on the rules on disclosure of confidential data have wider application.

  • The UK merger control regime, as noted, has similar statutory rules governing the balance between procedural fairness and protection of confidential information. Indeed, the airline Ryanair, which in August 2013 was subject to an adverse merger control finding by the Competition Commission in connection with its 29.8 per cent shareholding in Aer Lingus, has appealed against that decision – including on the grounds that
  • "The Commission's procedure was unfair, in that the Commission's case relies upon evidence and allegations that have been kept secret from Ryanair."42

  • Moreover, the same issues are highly relevant to the delicate balance between protection of confidential information and "access to the file" for parties under investigation in the context of the EU and UK prohibitions on anti-competitive agreements and use of dominant positions.

The Competition Appeal Tribunal's judgment in the BMI Healthcare case is an important contribution to the on-going process of striking the right balance.

A version of this article first appeared in the ILO (International Law Office) Competition Newsletter in November 2013.


38 UK Competition Appeal Tribunal, Case 1218/6/8/13 BMI Healthcare and others v Competition Commission [2013] CAT 24.
39 Paragraph 63 of the judgment in BMI Healthcare.
40 Paragraph 58 of the judgment.
41 Paragraphs 71 to 73 of the judgment.
42 Case 1219/4/8/13 Ryanair Holdings v Competition Commission, summary of application, 24 September 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions