Group Five Ltd v The Competition Commission

The Competition Commission referred a complaint to the Competition Tribunal alleging that Group Five Ltd and others engaged in collusive tendering in respect of a road rehabilitation contract. Before filing its answering affidavit, Group Five sought production of the Commission’s investigation record, relying on High Court rules 35(12) and (14) and Commission rule 15. The Commission initially provided an index but later refused production prior to the filing of answering papers, contending that access was only due at the discovery stage. The Tribunal upheld the Commission’s stance, dismissed Group Five’s application to compel production, and directed Group Five to file its answering affidavit within 20 business days. Group Five appealed to the Competition Appeal Court.

The appeal succeeded in part. The Tribunal’s order was set aside except for the direction requiring Group Five to file its answering affidavit. The Commission was ordered to forthwith provide access to non-restricted portions of its record under Commission rule 15, and Group Five was ordered to file its answering affidavit within 20 business days of the Appeal Court’s judgment. Disputes over privileged or confidential material were to be determined separately. Each party was ordered to bear its own costs.

The case clarifies the scope and timing of access to the Competition Commission’s records under Commission rule 15, confirming that litigants enjoy the same public-access rights as any other person and that such access cannot be deferred merely because litigation is pending. It draws a clear distinction between public access rights and discovery in Tribunal proceedings, and rejects the importation of PAIA-style limitations into competition law procedure.