Stericycle International LLC & Anors v Competition Commission [2006] CAT 22 (19 September 2006)

Case No. 1069/4/8/06(IR),  1070/4/8/06
IN THE COMPETITION 
APPEAL TRIBUNAL

Victoria House
Bloomsbury Place
London WC1A.2EB
	19th September 2006

Before:
SIR CHRISTOPHER BELLAMY
(President)

MICHAEL DAVEY
RICHARD PROSSER OBE

Sitting as a Tribunal in England and Wales

BETWEEN:

STERICYCLE INTERNATIONAL LLC
STERICYCLE INTERNATIONAL LIMITED
STERILE TECHNOLOGIES GROUP LIMITED	Applicants

and

COMPETITION COMMISSION	Respondent

Mr. George Peretz (instructed by DLA Piper) appeared for the Applicants.

Mr. Ben Rayment (instructed by the Treasury Solicitor) appeared for the Respondent.

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RULING ON COSTS

THE PRESIDENT:  In this matter the Tribunal has two applications for costs in front of it.  The first is in relation to the application for interim relief that the Applicants made on 19th July 2006 that was heard by the President of the Tribunal sitting alone.  On that occasion the President reserved the costs and it now falls to the President to make a Ruling as to what should happen as regards the costs of that occasion. 
	That application was made as a matter of urgency and centred on para. 2(j) of the CC’s order of 18th July which required, among other things, Stericycle and STG to liaise with the CC in order to establish suitable arrangements for ensuring that the relevant functions were carried out by separate teams from Stericycle and STG.  The Commission’s position, as set out in correspondence on 18th July, was that that imposed an obligation to establish separate teams, but that the practicalities of that operation were to be the matter of liaison between the parties.  It emerged at the beginning of the hearing on the 19th July that the parties had reached a common position to the effect that the CC would not take any steps to enforce para.2(j) until the CAT had ruled on the matter if necessary.  In that regard, having regard to the correspondence between the parties and the wording of para.2(j), it seems to me that it was not entirely clear under para. 2(j) exactly what obligation had been imposed on Stericycle and STG and in the circumstances it does not seem to me to have been an unreasonable step on behalf of the Applicants to apply to the CAT for relief in order to establish the position.  As it turned out it did not become necessary for the Tribunal to make any ruling on that application so the Tribunal has not gone into the merits of the matter one way or another as it appeared to be on the 19th July. 
	In those circumstances, as regards that part of these proceedings the proper order in my judgment is that both sides should bear their own costs.
	In relation to the main application, that is to say the one that has been dealt with today by the Tribunal in its Judgment, the submission that has been made to us is that the CC never really made it clear what its concerns were; that the discussions between the Applicants and the CC centred on various specific points in relation to sales and marketing operations and finance and related matters, and it was not until the Applicants received Mrs. Guy’s later witness statement that it became clear that what the CC was really concerned about was the single directing mind, that is to say one CEO being responsible for both parts of the business.
	The CC submits that there are two answers to that submission.  First, it was made clear to the Applicants, notably at p.32 of the transcript of a meeting that took place on 16th August, that it was very difficult for the CC to be prescriptive about particular aspects of the business in circumstances such as this; the CC had to take an overall view because it was difficult to foresee everything that might happen in the future.  Secondly, it was submitted that, in any event, a fair reading of the transcript shows that the Applicants either knew or should have known what the problem was.  
          We accept the CC’s submissions in this regard.  In our view there are a number of instances in the transcript of the 16th August meeting in which it is indicated to the Applicants that the Commission is concerned about the position of there being one CEO and particular reference is made to that problem on pp.12 and 28 of the transcript among other places.
	In those circumstances, and also having regard to the long history of this matter in which the Applicants were resisting the proposals of the CC throughout, we do not think it possible to displace the normal rule in cases such as this that the unsuccessful Applicant should pay the costs.  The staff meeting of 17th August does not in our view take matters very much further since the position should already have been made sufficiently clear on 16th August, if no earlier.  
	The Applicants having been unsuccessful in their application in our judgment this is a case where the Competition Commission should recover its costs to be agreed within 28 days, or if not agreed summarily assessed by the Tribunal.
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