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Richard Blakeley, Helen Davies, May 17, 2009
On December 10, 2008, the Competition Appeal Tribunal (“CAT”) handed down its judgment in Merger Action Group v Secretary of State for Business, Enterprise and Regulatory Reform [2008] CAT 36. The CAT decided: (i) that the Merger Action Group (“MAG”), an unincorporated association formed for the purposes of mounting this legal challenge and constituted of a handful of Scottish businessmen, was made up of “persons aggrieved” within the meaning of section 120(1) of the Enterprise Act 2002 (“the Act”) but (ii) that the substantive challenge to the Secretary of State’s decision not to refer the merger between Lloyds TSB Group plc (“Lloyds TSBâ€) and HBOS plc (“HBOS”) to the Competition Commission for investigation should fail. The claim certainly proved to be dramatic in its execution, not least because MAG’s challenge to the Secretary of State’s decision was brought just hours before the statutory time limit was due to expire and time was undoubtedly of the essence to the prospects of the merger being successfully completed. Ultimately, however, save in two particular aspects on which we focus here, it proved to be unremarkable in its conclusion. We first discuss the background to the merger and the claim by MAG, followed by the CAT’s substantive conclusion. We then turn to the two more interesting aspects of the CAT’s decision: that the members of MAG had standing to bring the application; and that the appropriate forum of the proceedings was Scotland.
