The UK Competition Appeal Tribunal clarifies scope of litigation privilege in Office of Fair Trading investigations (Tesco)

The UK Competition Appeal Tribunal ("CAT") has ruled that litigation privilege attaches to documents of parties being investigated, even when created before the Office of Fair Trading ("OFT") takes a formal infringement decision. The CAT confirmed that, once the OFT has issued a Statement of Objections ("SO"), which is the OFT’s proposed decision that competition law has been violated, the administrative procedure has become confrontational and sufficiently adversarial that information gathered by the defendant in relation to its defense is protected from disclosure by litigation privilege. This judgment is important because it clarifies that documents prepared by a party and its external lawyers in contemplation of an appeal against a possible OFT infringement decision are

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Frances M. Murphy, Lynette Zahn, The UK Competition Appeal Tribunal clarifies scope of litigation privilege in Office of Fair Trading investigations (Tesco), 20 March 2012, e-Competitions Bulletin March 2012, Art. N° 50041

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