Source: All England Reporter
Publisher Citation: [2010] All ER (D) 130 (Jan)
Neutral Citation: [2010] EWCA Civ 2
Court: Court of Appeal, Civil Division
Judge:

Rix, Lloyd LJJ and Mackay J
Representation Michael Beloff QC, James Flynn QC and Aidan Robertson QC (instructed by Allen & Overy LLP) for Sky.
  Richard Gordon QC and Marie Demetriou (instructed by Ashurst LLP) for Virgin.
  John Swift QC, Daniel Beard and Rob Williams (instructed by the Treasury Solicitor) for the Competition Commission.
  Paul Lasok QC and Elisa Holmes (instructed by the Treasury Solicitor) for the Secretary of State.
Judgment Dates: 21 January 2010

Catchwords

Competition - Merger - Substantial lessening of competition - Referral to Competition Commission by Secretary of State - Sky acquiring 17.9 per cent of issued share capital of ITV - Commission finding relevant merger situation leading to substantial lessening of competition - Commission recommending Sky reduce its holding to below 7.5 per cent - Commission not finding acquisition operating against public interest if regard had to media plurality - Competition Appeal Tribunal upholding Sky's challenge to Commission's finding on media plurality - Commission dismissing Sky's review application - Correct interpretation of media plurality - Whether tribunal applying same principles as would be applied by court on application for judicial review - Whether Commission directing itself correctly regarding standard of proof - ss 26, 58, 120.

The Case

Competition Merger. The Court of Appeal Civil Division, found that, in an appeal arising from the acquisition by the first claimant, Sky, of 17.9 per cent of the issued share capital of ITV, the Competition Appeal Tribunal had been correct in upholding the decision of the Competition Commission that Sky had to reduce its shareholding to 7.5 per cent. However, the tribunal had erred on the issue of media plurality. Section58A(5) of the did not prevent the Commission from having regard to the actual level of control.

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