NEWS

Court of Appeal gives judgment in the National Grid Appeal

24 February 2010

The Court of Appeal has given judgment in National Grid's appeal against a decision by the Competition Appeal Tribunal in April of last year.

The Tribunal had largely upheld a decision of the energy regulator, Ofgem, finding that National Grid had abused its dominant position in the market in Great Britain for the provision of domestic-sized gas meters, contrary to section 18 of the Competition Act 1998 Act and Article 82 of the EC Treaty (now Article 102 of the Treaty on the functioning of the European Union). However, the Tribunal had significantly reduced the level of the fine imposed by Ofgem from £41.5m to £30m, in recognition of the fact that National Grid had kept Ofgem closely informed when negotiating the arrangements which were later found to infringe the competition rules.

The Court of Appeal (consisting of Pill, Richards and Dyson LLJ) dismissed National Grid's appeal with respect to abuse but partly allowed its appeal with respect to penalty, reducing the fine by a further £15m (from £30m to £15m). Richards LJ found that the Tribunal had placed insufficient weight on Ofgem's involvement in the history and had failed to give any weight at all to certain factors to which some weight ought to be given. Pill LJ also gave weight to the novelty of the situation and to the 'genuine uncertainty on the part of the undertaking as to whether the agreement or conduct constituted an infringement'.

Jon Turner QC, Josh Holmes, Meredith Pickford and Laura Elizabeth John were instructed by Pinsent Masons for National Grid plc.

Christopher Vajda QC and Kassie Smith were instructed by Hill Hofstetter for Siemens Plc who had intervened in support of Ofgem and who intervened at the Court of Appeal.

To read the judgment, please click here.

Please click below for more information on:
Christopher Vajda QC
Jon Turner QC
Kassie Smith
Josh Holmes
Meredith Pickford
Laura Elizabeth John