The Competition Appeal Tribunal (CAT) has reprimanded Herbert Smith’s head of EU and competition Jonathan Scott for “inappropriate” comments made during a private meeting regarding the alleged cartel activities of an Ashurst client.
The recently released CAT judgment said: “Since the coming into force of the 1998 [Competition] Act, such matters cannot be dealt with in private between companies or their respective advisers. We are therefore of the opinion that the pressure here in question was not, objectively speaking, proper.”
According to the judgment, Scott met with Ashurst competition partner Roger Finbow in June 2003 to discuss an appeal before the CAT in connection with alleged cartel activities by Robert Wiseman Dairies.
Neither Scott nor Finbow was working on the case, but Finbow’s Ashurst colleagues were advising Express Dairies, which claimed it was the target of anticompetitive practices by Robert Wiseman Dairies, for which Scott is Herbert Smith’s relationship partner.
During the meeting, Scott told Finbow that the company was infuriated at allegations of involvement in a cartel, with Scott indicating that he would expose Express’s cartel activities to the CAT.
In a statement to the CAT about his meeting with Scott, Finbow said: “I suggested that it might look suspicious if… Express were now to withdraw their appeal; to which he suggested that it might be that this could be done on the basis of our having seen the Office of Fair Trading’s file.”
The CAT judgment said: “No legal adviser could properly lend themselves to the suggestion that a court or tribunal might be misled.”
Following the meeting, Ashurst told Express about the conversation with Scott. Express then instructed Browne Jacobson to represent it independently.
The CAT refrained from taking action against Scott and accepted that there was no guidance as to how a situation such as this should be handled. But the CAT criticised Scott for his actions.
“Professional advisers need to take care to ensure that they do not put themselves in a position which may risk compromising their duty to the tribunal,” the CAT judgment said.
A spokesman for Herbert Smith said: “Our stance throughout this is that guidance would be helpful.”
Finbow commented: “The judgment proves Ashurst acted properly.”