Nabarro competition lawyers are bidding to force the OFT to launch an inquiry into whether cover price rises are putting people off buying newspapers and magazines.
The watchdog is facing a challenge at a Competition Appeals Tribunal (CAT) from the National Federation of Retail Newsagents (NFRN) and the Association of Convenience Stores (ACS).
The NFRN conducted a survey and submitted what they said was an “overwhelming” case, which was rejected by the OFT. The organisation has now appealed that decision to the CAT, with in-house representative David Daniel instructing Nabarro partner Cyrus Mehta, head of the EU and competition group, and senior associate Ilan Sherr. The ACS has instructed Edwin Coe senior partner David Greene.
Counsel at the CAT for both appellants will be George Peretz and Laura John of Monckton Chambers.
The OFT team will be led by in-house counsel Frances Barr.
The NFRN and ACS claim the OFT said in 2009 that it found substantial anti-competitive features of the market, but after asking for submissions in 2011, decided against asking the Competition Commission to intervene. This was based on a ‘state of flux’ in the market, it said.
Lawyers for the associations said the decision is unreasonable, based on evidence from publishers and wholesalers, and did not give enough weight to the NFRN’s findings. They are asking for the CAT to order the OFT to undertake the review of the £7bn industry.
But the OFT said, following a prioritisation assessment, it would not be investigating. Louis Christofides, goods and consumer group director, said a review was turned down on the grounds that consumers would not be likely to benefit significantly in terms of lower price, increased availability or greater convenience as a result of an update review.
The OFT said during its consultation, availability had improved, the number of retailers remained stable at 50,000, average prices declined in real terms and there was more self-regulation in the market.
However, NFRN national president Kieran McDonnell said: “The NFRN has been fighting for justice for its members for more than 15 years through the competition authorities and the continued failings in the industry are too serious not to pursue this appeal.
“So long as the OFT fails to act they continue to support a market that is rife with anti-competitive practices. This legal action is the latest step in our ongoing fight for fairness and equality in serving our customers.”
The next hearing is a case management conference on 8 June.