The UK Supreme Court's CMA v Flynn decision is unlikely to change the Upper Tribunal's approach to costs against the financial services regulators

Recent legal commentary has exaggerated the practical implications of the UK Supreme Court's decision in CMA v Flynn Pharma [2022] UKSC 14.  For example, assertions have been made that the decision opens the floodgates of costs orders against regulators, simply by finding that there isn't a blanket rule against them.

Let's firmly set the record straight.

What did the Supreme Court really say?

The Supreme Court relevantly decided that the Competition Appeals Tribunal (CAT) was entitled to make rules that, in effect, left costs orders (including those made against or in favour of the CMA) to the CAT's discretion, albeit having regard to certain factors prescribed in the rules.

The reasoning is encapsulated in paras 97-98 of the decision as follows: 

• There is no general principle that all public bodies should enjoy a protected status re costs when they bring or defend a case in the public interest.
• In such proceedings, an important factor for a court or tribunal to take into account when exercising its discretion is the risk of "a chilling effect on the conduct of the public body, if costs orders are routinely made against it in those kinds of proceedings, even where the body has acted reasonably in bringing or defending the application".
• But it shouldn't be assumed that there might be such a chilling effect in every situation and for every public body.
• The assessment of whether a chilling effect is sufficiently plausible to justify a starting point (in the court/tribunal rules) of no order as to costs is an assessment "best made  by the court or tribunal in question, subject to the supervisory jurisdiction of the appellate courts".

The UKSC firmly agreed with the way the CAT made that assessment and the way the CAT reflected that assessment in the CAT's rules.

Business as usual

So this decision doesn't at all mean that regulators will have more costs orders made against them.

What it really says is that it's up to the court or tribunal in question.

And what about the FCA/PRA/BoE/PSR context?  Well, r.10 of the Upper Tribunal's rules provides that in financial services/sanctions cases there will be no order for costs except where the decision in respect of which the reference/appeal was made was "unreasonable" (or - which is true of all Upper Tribunal cases - the party or their representative acted unreasonably in bringing, defending or conducting the proceedings).

I think that appellate courts are unlikely to cavil with this assessment by the Upper Tribunal, especially given how sympathetically the Supreme Court treated the CAT in CMA v Flynn Pharma.

In other words: the Upper Tribunal shut the floodgates a long time ago, and its appellate courts probably aren't going to open them.