The Supreme Court has permitted Rye Investments Limited and the Competition Authority to file short statements about the integration of businesses involved in a merger, as part of the Authority’s appeal against a High Court decision. The statements are intended to help the court consider whether integration details could matter to a mootness argument; they are not evidence from which factual findings may be made.
The decision, delivered by Mr Justice Clarke on 26 October 2012, concerns an application about additional material for the appeal. Rye had succeeded in the High Court in challenging the Authority’s refusal to sanction aspects of a proposed merger involving Breeo Foods Ltd and Breeo Brands Ltd. The Authority appealed. The merger was completed on 26 March 2009, after the High Court’s order and before the appeal was heard.
Rye argued that the appeal had become moot because the merger had gone ahead and the businesses had since been integrated. The Authority disputed that the appeal could be moot and challenged the relevance of Rye’s proposed evidence. It also argued that assessing disputed integration facts for the first time in the Supreme Court could create procedural and logistical difficulties.
Clarke said the court could receive evidence about events after the High Court decision without special leave under the relevant court rule, but retained discretion to exclude material that could not realistically be relevant. He did not decide whether the appeal was moot or whether integration details would ultimately matter. Those issues, he said, could not be resolved on this procedural application.
The court allowed Rye to file a short statement setting out its contentions about integration, with two proposed paragraphs excluded because they concerned claimed efficiency savings and customer discounts rather than the extent of integration. The Authority may file a statement of similar length identifying questions it considers relevant if a more detailed assessment becomes necessary. Both statements must be verified by affidavit and will record each party’s position, not prove facts.
Clarke said that if specific factual findings were needed, the court would decide in principle how they should be obtained, potentially through procedures in the Supreme Court or a referral to the High Court. He proposed hearing further submissions on the filing timetable. The ruling did not determine the merits of the Authority’s appeal or prescribe any further steps to reverse the merger.