Competition Appeal Tribunal rejects call by claimant for fast tracking of dispute with council over roadside advertising

The Competition Appeal Tribunal has refused to allocate a case against Leeds City Council to its ‘fast track’ after finding that the trial could not be conducted in the three days allowed by that regime.

Tribunal chair Ben Tidswell rejected the case put by Instaplanta (Yorkshire) that its dispute with Leeds over advertising hoardings could be resolved quickly.

Instaplanta (Yorkshire) claims Leeds has abused a dominant position under Chapter II of the Competition Act 1998.

The company says it has been prevented from competing with the council for the supply of environmentally-friendly roadside advertising space, because Leeds refused to grant permission for the installation of its timber floral planters under section 115E of the Highways Act 1980.

It says Leeds also operated in this market, with a local market share in the region of 80%, buttressed by its power to grant or withhold permission under section 115E.

Instaplanta (Yorkshire) argues that Leeds’s refusal in 2015 to grant permissions amounted to an abuse, as it treated the council’s commercial arm more favourably than a competitor.

Leeds disputes all aspects of the claim, denies that it is an undertaking for the purposes of granting permissions and says the sponsorship received through its parks and countryside arm was anyway insufficient to constitute economic activity in a market.

Under the fast track a trial should take no more than three days and be held within six months with recoverable costs capped by the tribunal.

Mr Tidswell said: “The claimant’s primary position was that the claim is neither factually complex nor novel.

“The defendant took a different view, arguing that the trial is likely to last between seven and 10 days. This was said to be driven by the number of witnesses, as well as the complexity of the legal and factual issues.”

He noted Leeds had identified at least seven witnesses it proposed to call.

Mr Tidswell said: “I am of the view that these events over a material period of time do need to be explored in factual evidence and that a number of witnesses from the defendant…will need to be called in order to do that properly.”

The number of witnesses meant “if no other reason, it is clear that the case cannot sensibly be tried within three days.

“There is also a risk that seeking to try the case within six months will not allow proper preparation in relation to the legal, economic and factual issues.”

Mr Tidswell said though that the tribunal would “exercise close supervision of this matter to ensure it is deal with in a timely and proportionate way” and ordered the parties to provide costs budgets, “with a view to close management of costs throughout the case”.

Mark Smulian