OFT chief slams 'excessive demands' of defendant lawyers

The delaying tactics and ‘excessive demands’ of defendant lawyers in competition actions are hampering cases and draining the resources of competition authorities, the chairman of the Office of Fair Trading (OFT) alleged last week.

Philip Collins told the Law Society competition section’s annual conference that the balance between the rights of defendants and the speed of decision-making might need to be corrected, and hinted that the OFT will become less tolerant of unreasonable requests from defendant lawyers.

Collins said cases were being hindered by satellite litigation, unmeritorious judicial review actions, challenges to OFT information requests and disputes over document redactions. He said these were doing ‘very little other than impede case delivery’.

‘The UK and EU competition regimes quite rightly err on the side of protecting parties’ rights,’ he said. ‘However, if we look at how cases have worked in practice, we might ask ourselves whether the balance, and the weights available to redress the balance, are correct.

‘In Competition Act cases, the OFT typically faces challenges to its procedural steps, letters threatening legal action and satellite litigation throughout. Those that make it to court are only the tip of the iceberg. I am talking about, for example, challenges to the scope of information requests, to how much time is allowed for responding to requests and protracted disputes over the scope of redactions to documents on the file.

‘These types of issue consume tremendous amounts of OFT resources in a manner and to an extent that I believe is not fully recognised by the business and legal community, focused as they are on their own specific interests and cases.

‘Parties should, of course, always have recourse to the courts if the OFT, or any other agency, exceeds its powers. However, the OFT faces an increasing number of requests or demands, often accompanied by threats of judicial review, that are lacking in merit, but which nevertheless have to be dealt with, and which do very ­little other than impede case delivery.

‘Perhaps, in the past, the OFT may have been too willing to engage with parties who shout loudly – regardless of the merits of their arguments – and over-tolerant of excessive requests and demands – such as unreasonable claims for extended deadlines or unsupportable claims of confidentiality or privilege,’ he said.