As Tesco gears up to challenge the OFT in the dairy price-fixing case next month, lawyers are saying the retailer stands a good chance of seeing its £10m fine reduced.
Tesco is appealing on two grounds - it is challenging the OFT’s conclusion that it participated in two instances of price-fixing related to cheese, and it is arguing the £10.4m fine imposed by the OFT is excessive.
The Competition Appeal Tribunal (CAT) will examine the strength of the OFT’s evidence against Tesco over a three-week period, starting on 26 April.
Tesco could well see its fine reduced as the CAT’s track record was “quite encouraging”, said Tristan Meears-White, a regulatory lawyer with DWF. “It tends to take a very balanced view on penalties.”
He added that although it would be “foolish” to try and predict how much of a reduction Tesco could expect if successful, the CAT had sanctioned “not insubstantial” reductions in the past.
Last year, it reduced the fines imposed by the OFT in a construction bid-rigging case by between 75% and 94%.
However, Becket McGrath, co-chair of the UK antitrust practice of law firm Edwards Wildman Palmer and a former OFT official, said Tesco was unlikely to see its fine reduced to that degree as the CAT tended to prioritise penalty reductions for smaller companies.
Tesco is fighting to get the entire verdict overturned. “We have always said that we did not collude and that we acted unilaterally at a time when there was huge pressure on retailers to raise prices for farmers,” said group regulatory affairs director Katherine Edwards.