The UK competition watchdog has vowed to fight a tribunal decision allowing an appeal against its 2021 hydrocortisone ruling, arguing that the decision to overturn over £100m in fines over a question of “due process” was “fundamentally misconceived”.

In a statement on Friday March 8, the Competition and Markets Authority (CMA) revealed that appeals against fines totalling £106m for Actavis UK and Advanz for what it described as “cartel behaviour” had been allowed by the Competition Appeal Tribunal (CAT).

The companies had appealed the CMA’s July 2021 finding that Auden Mckenzie (which was bought by Actavis in 2015 and is now named Accord UK) had paid AMCo (now known as Advanz Pharma) not to bring its own hydrocortisone 10mg tablet product to the market, leading to huge price rises for the NHS.

While in one judgment on Friday, the CAT agreed with the CMA that Auden/Actavis UK and AMCo/Advanz had engaged in “flagrantly anti-competitive” behaviour with regard to hydrocortisone 10mg tablets, in a second judgment the tribunal found that the watchdog had failed to “fully put its case” to ex-Advanz CEO John Beighton during a trial cross-examination, meaning the findings of the first judgment were “unsafe” and the appeals must be allowed.

The CAT said that if it were not for this “due process question” it would be “completely comfortable with the terms and outcome” of its first judgement, and that if the CMA successfully appeals against the due process question the first judgment and the related fines will stand.

“The CAT’s reasoning overlooks critical evidence that formed the basis for the CMA’s decision and was put to Mr Beighton over two days of cross-examination,” said the CMA, adding that it “will be seeking leave to appeal the CAT’s decision to ensure the effective enforcement of competition law”. 

CMA chief executive Sarah Cardell said: “The CMA imposed significant penalties on these firms after finding they engaged in a market sharing agreement that denied the NHS the potential savings from competition for this essential medicine.

“We believe the CAT’s decision to allow the appeals is fundamentally misconceived. The impact of this judgment is highly concerning. We will be appealing and remain determined to see this case through.”

Separate fines totalling £129m imposed on Actavis UK and its current and former parents in September 2023 after the CAT refused the companies appeal are unaffected by the tribunal decision announced on Friday.