PRACTICE DIRECTION – APPLICATION FOR A WARRANT UNDER THE COMPETITION ACT 1998
PRACTICE DIRECTION – APPLICATION FOR A WARRANT UNDER THE COMPETITION ACT 1998 OR THE STATE AID (EU EXIT) REGULATIONS 2019
| Title | Number |
|---|---|
| Interpretation | Para. 1.1 |
| Application for a warrant | Para. 2.1 |
| Confidentiality of court documents | Para. 3.1 |
| Contents of claim form, affidavit and documents in support | Para. 4.1 |
| Listing | Para. 5. |
| Hearing of the application | Para. 6.1 |
| The warrant | Para. 7.1 |
| Execution of warrant | Para. 8.1 |
| Application to vary or discharge warrant | Para. 9.1 |
| Application under s.59 Criminal Justice and Police Act 2001 | Para. 10.1 |
Interpretation
1.1
In this practice direction –
(1) ‘the Act’ means the Competition Act 1998;
(3) Omitted
(4) “the CMA” means the Competition and Markets Authority;
(5) ‘officer’ means an officer of the CMA;
(6) ‘named officer’ means the person identified in a warrant as the principal officer in charge of executing that warrant;
(6A) “the Regulations” means the State Aid (EU Exit) Regulations 2019; and
(7) ‘warrant’ means a warrant under section 28 or 28A of the Act or under paragraph 6 of Schedule 4 to the Regulations.
1.2
In relation to an application for a warrant by a regulator entitled pursuant to section 54 and Schedule 10 of the Act to exercise the functions of the CMA, references to the CMA shall be interpreted as referring to that regulator.
Application for a warrant
2.1
An application by the CMA for a warrant must be made to a High Court judge using the Part 8 procedure as modified by this practice direction.
2.2
The application should be made to a judge of the Chancery Division at the Royal Courts of Justice (if available).
2.3
The application is made without notice and the claim form may be issued without naming a defendant. Rules 8.1(3), 8.3, 8.4, 8.5(2)-(6), 8.6(1), 8.7 and 8.8 do not apply.
Confidentiality of court documents
3.1
The court will not effect service of any claim form, warrant, or other document filed or issued in an application to which this practice direction applies, except in accordance with an order of the judge hearing the application.
3.2
CPR rules 5.4, 5.4B and 5.4C do not apply, and paragraphs 3.3 and 3.4 have effect in its place.
3.3
When a claim form is issued the court file will be marked ‘Not for disclosure’ and, unless a High Court judge grants permission, the court records relating to the application (including the claim form and documents filed in support and any warrant or order that is issued) will not be made available by the court for any person to inspect or copy, either before or after the hearing of the application.
3.4
An application for permission under paragraph 3.3 must be made on notice to the CMA in accordance with Part 23.
(Rule 23.7(1) requires a copy of the application notice to be served as soon as practicable after it is filed, and in any event at least 3 days before the court is to deal with the application.)
Contents of claim form, affidavit and documents in support
4.1
The claim form must state –
(1) the provision of the Act or the Regulations under which the CMA is applying for a warrant;
(2) the address or other identification of the premises to be subject to the warrant; and
(3) the anticipated date or dates for the execution of the warrant.
4.2
The application must be supported by affidavit evidence, which must be filed with the claim form.
4.3
In an application under the Act, the evidence must set out all the matters on which the CMA relies in support of the application, including all material facts of which the court should be made aware. In particular it must state –
(1) the subject matter (i.e. the nature of the suspected infringement of the Chapter I or II prohibitions in the Act and purpose of the investigation to which the application relates;
(2) the identity of the undertaking or undertakings suspected to have committed the infringement;
(3) the grounds for applying for the issue of the warrant and the facts relied upon in support;
(4) details of the premises to be subject to the warrant and of the possible occupier or occupiers of those premises;
(5) the connection between the premises and the undertaking or undertakings suspected to have committed the infringement;
(6) the name and position of the officer who it is intended will be the named officer;
(7) if it is intended that the warrant may pursuant to a relevant provision of the Act authorise any person (other than an officer) to accompany the named officer in executing the warrant, the name and job title of each such person and the reason why it is intended that he may accompany the named officer.
4.3A
In an application under the Regulations, the evidence must set out all the matters on which the CMA relies in support of the application, including all material facts of which the court should be made aware.
In particular the evidence must state—
(1) the subject matter (i.e. the nature of the suspected misuse of aid) and purpose of the preliminary examination to which the application relates;
(2) the identity of the undertaking or undertakings suspected to have misused the aid;
(3) the grounds for applying for the issue of the warrant and the facts relied upon in support;
(4) details of the premises to be subject to the warrant and of the possible occupier or occupiers of those premises;
(5) the connection between the premises and the undertaking or undertakings suspected to have misused the aid;
(6) the name and position of the officer who it is intended will be the named officer;
(7) if it is intended that the warrant may, pursuant to paragraph 8 of Schedule 4 to the Regulations, authorise any person to accompany the named officer in executing the warrant, the name and job title of each such person and the reason why it is intended that he may accompany the named officer.
4.4
There must be exhibited to an affidavit in support of the application –
(1) the written authorisation of the CMA containing the names of –
(a) the officer who it is intended will be the named officer;
(b) the other persons who it is intended may accompany him in executing the warrant.
4.5
There must also be filed with the claim form –
(2) the written undertaking by the named officer required by paragraph 6.2 of this practice direction.
(Examples of forms of warrant under sections 28 of the Act or under the Regulations, and explanatory notes to be produced and served with them, are annexed to this practice direction. These forms and notes should be used with appropriate modifications in applications for warrants under other sections of the Act.)
4.6
If possible the draft warrant and explanatory note should also be supplied to the court in an electronic version in a form compatible with the word processing software used by the court.
Listing
5.
The application will be listed by the court on any published list of cases as ‘An application by D’.
Hearing of the application
6.1
An application for a warrant will be heard and determined in private, unless the judge hearing it directs otherwise.
6.2
The court will not issue a warrant unless there has been filed a written undertaking, signed by the named officer, to comply with paragraph 8.1 of this practice direction.
The warrant
7.1
The warrant must –
(1) contain the information required by section 29(1) of the Act or paragraph 9 of Schedule 4 to the Regulations;
(2) state the address or other identification of the premises to be subject to the warrant;
(3) state the names of –
(a) the named officer; and
(b) any other officers or other persons who may accompany him in executing the warrant;
(4) set out the action which the warrant authorises the persons executing it to take under the relevant provision of the Act or the Regulations;
(5) give the date on which the warrant is issued;
(6) include a statement that the warrant continues in force until the end of the period of one month beginning with the day on which it issued; and
(7) state that the named officer has given the undertaking required by paragraph 6.2.
7.2
Rule 40.2 applies to a warrant.
(Rule 40.2 requires every judgment or order to state the name and judicial title of the person making it, to bear the date on which it is given or made, and to be sealed by the court.)
Execution of warrant
8.1
A named officer attending premises to execute a warrant must, if the premises are occupied –
(1) produce the warrant and an explanatory note on arrival at the premises; and
(2) as soon as possible thereafter personally serve a copy of the warrant and the explanatory note on the occupier or person appearing to him to be in charge of the premises.
8.2
The named officer must also comply with any order which the court may make for service of any other documents relating to the application.
8.3
Unless the court otherwise orders –
(1) the initial production of a warrant and entry to premises under the authority of the warrant must take place between 9.30 a.m. and 5.30 p.m. Monday to Friday; but
8.4
If the persons executing a warrant propose to remove any items from the premises pursuant to the warrant they must, unless it is impracticable –
(1) make a list of all the items to be removed;
(2) supply a copy of the list to the occupier or person appearing to be in charge of the premises; and
(3) give that person a reasonable opportunity to check the list before removing any of the items.
Application to vary or discharge warrant
9.1
The occupier or person in charge of premises in relation to which a warrant has been issued may apply to vary or discharge the warrant.
9.2
An application under paragraph 9.1 to stop a warrant from being executed must be made immediately upon the warrant being served.
9.3
A person applying to vary or discharge a warrant must first inform the named officer that he is making the application.
9.4
The application should be made to the judge who issued the warrant, or, if he is not available, to another High Court judge.
Application under s.59 Criminal Justice and Police Act 2001
10.1
Attention is drawn to section 59 of the Criminal Justice and Police Act 2001, which makes provision about applications relating to property seized in the exercise of the powers conferred by (among other provisions) section 28(2) of the Act and paragraph 8 of Schedule 4 to the Regulations.
Warrant (PDF - opens in new window)
Explanatory Note to Warrant under sections 28 and 29 of the Competition Act 1998 (‘the Act’)
This Explanatory Note is provided for information only. It is not a detailed note of the powers under the Act which are subject to interpretation by the courts.
Subject matter and powers
Officers of the Competition and Markets Authority (‘the CMA’) [[if the Judge so orders pursuant to section 28(3A), insert the following here and elsewhere as indicated] and other persons] have been authorised under Warrant to enter and search the premises identified in the Warrant in connection with an investigation under the Act. The subject matter of this investigation is set out in paragraph 2 of the Warrant. The officers [and other persons] will not elaborate on this.
Paragraph 4 of the Warrant sets out the powers of the named officer1 and other officers [and other persons] under section 28 of the Act for the purposes of the present investigation. On entering the premises, the named officer will, as a matter of practice, produce evidence of the identity of the other officers in addition to his identity when producing the Warrant.
Unless the Court has ordered otherwise, the initial production of the Warrant and entry to premises must take place between 9.30 a.m. and 5.30 p.m. Monday to Friday and, once officers [and other persons] have entered premises under the authority of the Warrant, they may outside those times and whilst the Warrant remains in force, remain on the premises or re-enter the premises to continue executing the Warrant.
Access to legal advice
You are advised to seek legal advice. If the named officer and other officers consider it reasonable in the circumstances to do so and if they are satisfied that you are complying with, or will comply with, such conditions as they consider it appropriate to impose, the named officer and other officers will grant a request to allow a reasonable time for your legal adviser to arrive at the premises before the inspection continues.
If you decide to seek legal advice you should do so promptly and this must not unduly delay or impede the inspection. Any delay must be kept to a strict minimum.
If you have an in-house legal adviser on the premises, or if you have received prior notice of the inspection, the named officer and other officers [and other persons] will not wait for your external legal adviser to arrive.
Self-incrimination
The named officer and other officers [and other persons] have powers, among other matters, to search and take copies of, or extracts from, documents covered by the Warrant, to require you to produce relevant information which is stored in any electronic form and to require you to provide an explanation of any such documents (which the Act defines as including information recorded in any form). However, if your undertaking is suspected of having committed an infringement of the Act, they cannot require you to provide answers or statements that might involve an admission on your part of the existence of that infringement.
You should note also that, any statement made by a person in response to a requirement imposed by the named officer or other officers [or other persons] in exercise of their powers under paragraph 4 of the Warrant, may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 (the cartel offence) unless, in the proceedings –
- in giving evidence, he makes a statement inconsistent with it, and
- evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf.
Legally privileged communications
The powers under section 28 of the Act to search, take copies etc. (set out in paragraph 4(b) onwards in the Warrant) do not apply in respect of any ‘privileged communication’. This is defined in section 30 of the Act to mean a communication
- between a professional legal adviser and his client, or
- made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
which would be protected from disclosure in proceedings in the High Court on grounds of legal professional privilege.
For the purposes of section 30, a ‘professional legal adviser’ includes both an external and an in-house qualified legal adviser.
If you consider that a document or information is privileged, you should provide the named officer or other officer [or other person] with material of such a nature as to demonstrate to his satisfaction that the document or information, or parts of it, for which privilege is claimed, fulfil the conditions for it being privileged.
If you fail to do so, you should gather together the items for which privilege is claimed. These items will not be examined or copied unless you reach an agreement with the named officer that they may be examined or copied. If no agreement is reached on the day of the inspection, the named officer will request that you make a copy of the items and place this in a sealed envelope or package in his presence. The named officer will then discuss with you appropriate arrangements for the safe-keeping of these items pending resolution of the issue of privilege. For example, such arrangements may include a request that your legal adviser should give (or if no legal adviser is present, that you give), a written undertaking that the envelope or package will be retained safely and that its contents will not be concealed, removed, tampered with or destroyed until the issue of privilege is resolved.
Listing of items
Unless it is impracticable in all the circumstances, no item may be removed from the premises by the named officer or other officers [or other persons] until they have prepared a list of all the items to be removed, a copy of the list has been supplied to you, and you have been given a reasonable opportunity to check that the list relates to all the items concerned, and only to those items. This does not entitle you or your legal adviser to insist that the list or its contents should take any particular form.
Confidentiality
You should note that, subject to the safeguards in relation to self-incrimination and legal privilege, you are not entitled to withhold a document or information by claiming that it is confidential.
Where it is possible to do so, it is suggested that after the inspection on the premises you should identify any part or parts of any information or document copied or taken that you consider to be confidential and provide a written explanation as to why it should be treated as such. For these purposes information is confidential if it is:
- commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the undertaking to which it relates; or
- information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm his interests2.
A document will be treated as confidential to the extent that it contains confidential information.
It is for the CMA to determine whether or not the information is to be disclosed in accordance with Part 9 of the Enterprise Act 2002.
Application to vary or discharge the Warrant
You are entitled to apply to the Court to vary or discharge the Warrant. If you intend to make such an application, you must first inform the named officer. An application to stop the Warrant from being executed must be made immediately upon it being served.
The application must be made to the judge who issued the Warrant, or if he is not available, to another High Court judge.
If you are making an immediate application to stop the Warrant from being executed, the named officer will delay starting or continuing a search of the premises for a reasonable period (not exceeding two hours) while you make your application, provided that you
- permit the named officer and other officers [and other persons] to enter and remain on the premises;
- keep the named officer informed of the steps you are taking in relation to the application; and
- comply with any other conditions that the named officer imposes.
Examples of conditions that the named officer may impose pursuant to (3) above include: that you do not disturb or move any document or information that is the subject of the Warrant; and/or you do not tell anyone other than your legal adviser about the Warrant or the investigation.
Application under section 59 Criminal Justice and Police Act 2001
Your attention is drawn to section 59 of the Criminal Justice and Police Act 2001, which makes provision about applications relating to property seized in the exercise of the powers conferred by (among other provisions) section 28(2) of the Act.
An application under section 59 –
- must be made by application notice in accordance with Part 23 of the Civil Procedure Rules; and
- should be made to a judge of the Chancery Division at the Royal Courts of Justice (if available).
Warrant (PDF - opens in new window)
Explanatory Note to Warrant under paragraph 6 of Schedule 4 to the State Aid (EU Exit) Regulations 2019 (‘the Regulations’)
This Explanatory Note is provided for information only. It is not a detailed note of the powers under the Regulations which are subject to interpretation by the courts.
Subject matter and powers
Officers of the Competition and Markets Authority (‘the CMA’) [[if the Judge so orders pursuant to paragraph 8(2), insert the following here and elsewhere as indicated] and other persons] have been authorised under Warrant to enter premises identified in the Warrant in connection with an examination of alleged misuse of aid under the Regulations.
The subject matter of this examination is set out in paragraph 2 of the Warrant. The officers [and other persons] will not elaborate on this.
Paragraph 4 of the Warrant sets out the powers of the named officer [footnote] and other officers [and other persons] under paragraph 8 of Schedule 4 to the Regulations for the purposes of the present examination. On entering the premises, in addition to producing evidence of their own identity as required by the Regulations, the named officer will, as a matter of practice, produce evidence of the identity of the other officers [and other persons] when producing the Warrant.
Unless the Court has ordered otherwise, the initial production of the Warrant and entry to the premises must take place between 9.30 a.m. and 5.30 p.m. Monday to Friday and, once officers [and other persons] have entered premises under the authority of the Warrant, they may outside those times and whilst the Warrant remains in force, remain on the premises or re-enter the premises to continue executing the Warrant.
Access to legal advice
You are advised to seek legal advice. If the named officer and other officers consider it reasonable in the circumstances to do so and if they are satisfied that you are complying with, or will comply with, such conditions as they consider it appropriate to impose, the named officer and the other officers will grant a request to allow a reasonable time for your legal adviser to arrive at the premises before the proposed entry continues.
If you decide to seek legal advice you should do so promptly and this must not unduly delay or impede the proposed entry. Any delay must be kept to a strict minimum.
If you have an in-house legal adviser on the premises, or if you have received prior notice of the proposed entry, the named officer and other officers [and other persons] will not wait for your external legal adviser to arrive.
Self-incrimination
The named officer and the other officers have powers, among other matters, to search and take copies of, or extracts from, documents covered by the Warrant, to require you to produce relevant information which is stored in any electronic form and to require you to provide an explanation of any such documents (which the Regulations define as information recorded in any form).
You should note that, any statement made by a person in response to a requirement imposed by the named officer or other officer may only be used in evidence against that person for the prosecution of an offence under the Regulations; or on prosecution for any other offence where –
1. in giving evidence, that person makes a statement inconsistent with it; and
2. evidence relating to it is adduced, or a question relating to it is asked, by them or on their behalf.
Legally privileged information
The powers under paragraph 8 of Schedule 4 to the Regulations to search, take copies etc. (set out in paragraph 4(b) onwards in the Warrant) do not apply in respect of any ‘privileged communication’. This is defined in paragraph 17 of Schedule 4 to the Regulations to mean a communication –
1. between a professional legal adviser and the adviser’s client, or
2. made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
which would be protected from disclosure in proceedings in the High Court on grounds of legal professional privilege.
For the purposes of paragraph 17 of Schedule 4 to the Regulations, a ‘professional legal adviser’ includes both an external and an in-house qualified legal adviser.
If you consider that a document or information is privileged, you should provide the named officer or the other officer with material of such a nature as to demonstrate to the officer’s satisfaction that the document or information, or parts of it, for which privilege is claimed, fulfil the conditions for it being privileged.
If you fail to do so, you should gather together the items for which privilege is claimed. These items will not be examined or copied unless you reach agreement with the named officer that they may be examined or copied. If no agreement is reached whilst the warrant is being executed, the named officer will request that you make a copy of the items and place this in a sealed envelope or package in the named officer’s presence. The named officer will then discuss with you the appropriate arrangements for the safe-keeping of these items pending resolution of the issue of privilege. For example, such arrangements may include a request that your legal adviser should give (or if no legal adviser is present, that you give), a written undertaking that the envelope or package will be retained safely and that its contents will not be concealed, removed, tampered with or destroyed until the issue of privilege is resolved.
Listing of items
Unless it is impracticable in all the circumstances, no item may be removed from the premises by the named officer or other officers until they have prepared a list of all the items to be removed, a copy of the list has been supplied to you, and you have been given a reasonable opportunity to check that the list relates to all the items concerned, and only to those items. This does not entitle you or your legal adviser to insist that the list or its contents should take any particular form.
Confidentiality
You should note that, subject to the safeguards in relation to self-incrimination and legal privilege, you are not entitled to withhold a document or information claiming that it is confidential.
Where it is possible to do so, it is suggested that after the entry to the premise you should identify any part or parts of any information or document copied or taken that you consider to be confidential and provide a written explanation as to why it should be treated as such. For these purposes information is confidential if it is:
1. commercial information the disclosure of which the CMA thinks might significantly harm the legitimate business interests of the undertaking to which it relates;
2. information relating to the private affairs of an individual the disclosure of which the CMA thinks might significantly harm the individual’s interests; or
3. information the disclosure of which the CMA thinks is contrary to the public interest.
A document will be treated as confidential to the extent that it contains confidential information.
It is for the CMA to determine whether or not the information is to be disclosed in accordance with Part 9 of the Enterprise Act 2002.
Application to vary or discharge the warrant
You are entitled to apply to the Court to vary or discharge the Warrant. If you intend to make such an application, you must first inform the named officer. An application to stop the Warrant from being executed must be made immediately upon it being served.
The application must be made to the judge who issued the Warrant, or if that judge is not available, to another High Court judge.
If you are making an immediate application to stop the Warrant being executed, the named officer will delay starting or continuing a search of the premises for a reasonable period (not exceeding two hours) while you make your application, provided that you
1. permit the named officer and other officers [and other persons] to enter and remain on the premises;
2. keep the named officer informed of the steps you are taking in relation to the application; and
3. comply with any other conditions that the named officer imposes.
Examples of conditions that the named officer may impose pursuant to (3) above include: that you do not disturb or move any document or information that is the subject of the Warrant; and/or you do not tell anyone other than your legal adviser about the Warrant or the investigation.
Application under section 59 Criminal Justice and Police Act 2001
Your attention is drawn to section 59 of the Criminal Justice and Police Act 2001, which makes provision about applications relating to property seized in the exercise of the powers conferred by (among other provisions) paragraph 8 of Schedule 4 to the Regulations.
An application under section 59—
1. must be made by application notice in accordance with Part 23 of the Civil Procedure Rules; and
2. should be made to a judge of the Chancery Division at the Royal Courts of Justice (if available).
Footnotes
