On 25 May 2022 the Supreme Court overturned the Court of Appeal’s ruling on costs in Pfizer and Flynn Pharma and concluded that the Competition Appeal Tribunal (CAT) had applied the correct test when awarding a proportion of their costs against the CMA. The Court of Appeal had held that, despite Pfizer and Flynn’s successful appeals before the CAT, no order of costs should have been made against the CMA as it had been acting in its capacity as a regulatory body. According to the Court of Appeal the starting point should have been that no order for costs should be made against a regulator who has brought or defended proceedings in the CAT acting purely in its regulatory capacity. It held that this starting point can be departed from for good reason, but the mere fact that the regulator
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