Group Five Ltd v The Competition Commission

On 17 March 2015, the Competition Commission referred a complaint to the Tribunal alleging that Group Five and two other civil engineering companies engaged in collusive tendering for a road rehabilitation contract. Group Five was required to file answering papers within 20 business days. During April 2015, Group Five requested production of the Commission's investigation record, initially relying on High Court rules 35(12) and (14), and later also on Commission rule 15. On 18 June 2015, the Commission provided an index and offered inspection of non-privileged documents, but later changed its position, demanding Group Five file answering papers first. The Commission served an application for default relief on 3 August 2015 when Group Five failed to file its answering papers. On 7 September 2015, Group Five served an application to compel production. The Commission did not answer, contending Group Five was not entitled to production before filing answering papers. The Tribunal on 18 January 2016 upheld the Commission's stance and directed Group Five to file answering papers within 20 business days, failing which the Commission could seek default relief.

• Whether Group Five was entitled to production of the Commission's investigation record in terms of High Court rules 35(12) and (14) before filing answering papers
• Whether Group Five was entitled to access to the Commission's record in terms of Commission rule 15(1) as a litigant
• Whether Commission rule 15(1)'s requirement for access within a 'reasonable time' is affected by the requester's status as a litigant in proceedings before the Tribunal
• Whether the Commission's obligation to provide access in terms of Commission rule 15(1) is deferred until post-pleading discovery in litigation
• Whether Group Five's obligation to file answering papers is linked to the Commission's obligation to provide access under rule 15(1)

The appeal succeeded in part. The Tribunal's order of 18 January 2016 (except para 78.3) was set aside and replaced with: (i) the Commission must forthwith afford Group Five access to non-restricted portions of its record under Commission rule 15; (ii) Group Five must file its answer within 20 business days after the date of the Appeal Court's judgment; (iii) if Group Five fails to file within that period, the Commission may approach the registrar to set down its default judgment application; (iv) if Group Five disputes the Commission's claims of protection over certain records, the Tribunal must determine that dispute after receiving further affidavits. The parties were to bear their own costs in the appeal.

The binding legal principles established are: (1) Commission rule 15(1) creates a public-access right vesting in 'any person', not a specific right for litigants. (2) The determination of a 'reasonable period' within which the Commission must provide access under rule 15(1) is concerned only with the time the Commission reasonably requires to prepare its record and identify restricted parts; it is not affected by whether the requester is a litigant. (3) A respondent's entitlement to the Commission's record within a reasonable period under rule 15(1) cannot be negatively affected by its status as a litigant in Tribunal proceedings. (4) Commission rule 15(1) contains no express or implied limitation deferring production until post-pleading discovery when the requester is a litigant. (5) The right of access under Commission rule 15(1) is distinct from a litigant's right to discovery; they operate independently and are not linked. (6) A respondent's obligation to file answering papers in Tribunal proceedings is not linked to or dependent upon the Commission's obligation to provide access under Commission rule 15(1).

The court made several non-binding observations: (1) It left open whether complaint proceedings before the Tribunal constitute 'civil proceedings' for purposes of PAIA section 7(1) and whether the Tribunal's rules provide for access to the Commission's record in a way that would exclude PAIA. (2) The court noted that policy considerations underlying PAIA section 7 might justify introducing a similar qualification in Commission rule 15, defining exclusion by reference to the purpose for which a record is requested rather than the identity of the requester. Such a provision would not give rise to the absurdity identified in the ArcelorMittal decision. (3) The court observed that it would be improper for the Commission to delay production of its record for tactical reasons or to contrive disputes about privilege and confidentiality. (4) The court cautioned that respondents should not be encouraged to delay filing answering papers based on a right of access to information that has nothing to do with their status as litigants. (5) The court noted that if there were merit to Group Five's criticisms about vagueness and contradictions in the referral affidavit, the appropriate procedural response would have been to attack the referral affidavit as non-compliant with Tribunal rule 15, akin to a High Court exception.

This case is significant for clarifying the relationship between Commission rule 15(1) (public access to Commission records) and the Tribunal's procedural rules governing litigation. It establishes that the public-access right in Commission rule 15(1) applies equally to litigants and is not displaced or deferred by litigation procedures. The judgment prevents the Commission from using procedural tactics to delay disclosure of its investigation record and confirms that respondents' rights as members of the public to access Commission records remain intact even when they become litigants. The case also clarifies that the right to access under rule 15(1) and the obligation to plead are independent and not linked. This decision is important for competition law practitioners and reinforces transparency principles in administrative proceedings.