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On appeal from: [2016] EWCA Civ 719.

The case concerned “early resolution agreements” (ERA), which involved parties admitting competition law infringement and co-operating with the OFT in exchange for substantial reductions in the anticipated penalties. An ERA party could also appeal an OFT final decision, notwithstanding any admissions in the ERA. One such party to an ERA (TMA) was given an assurance that if it did not appeal, it would still get the benefit of any successful appeals. The case before the Supreme Court is a judicial review brought by the respondents, arguing that the principle of equal treatment required them to be given the benefit of the assurance given to TMA.

Held: domestic administrative law does not recognise a distinct principle of equal treatment. Consistency is generally desirable objective, but not an absolute rule. In the instant case, the respondents had a legitimate expectation of equal treatment but that would not in itself provide a basis for financial remedy, nor the reversal of financial penalties that had by then been lawfully imposed on, and accepted by, the respondents. The OFT’s mistake was that they gave the assurance to TMR, not that they failed to give it to the respondents. The circumstances amount to a powerful objective justification for the unequal treatment.

For judgment, please download: [2018] UKSC 25
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (13 Mar 2018 morning session) (13 Mar 2018 afternoon session) (14 Mar 2018 morning session)