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The Court of Appeal has handed down judgment in a case concerning the circumstances in which a decision that is quashed in judicial review proceedings will be remitted to a new decision-maker for reconsideration. It has concluded that the presence of actual bias, apparent bias or confirmation bias will make remittal to the original decision-maker undesirable. Furthermore, remittal should be to a new decision-maker where reconsideration by the original decision-maker would cause “reasonably perceived unfairness to the affected parties or would damage public confidence in the decision making process”.

HCA International Limited (“HCA”) appealed against the refusal of the Competition Appeal Tribunal, following HCA’s successful challenge to decisions made by the Competition and Markets Authority (“the CMA”) during its private healthcare market investigation, to remit those decisions for reconsideration by a new inquiry group of the CMA. HCA relied, inter alia, on its unfair treatment by the CMA’s original inquiry group during the investigation. On the facts, the Court of Appeal concluded that although HCA had been inappropriately and unfairly treated by the CMA during the market investigation, and although the CMA had failed in its evidence to accept the same, in all the circumstances it was not necessary to remit the matter to a new decision-maker.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/492.html

Dinah Rose QC and Hanif Mussa acted for HCA International Limited.

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