Regina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd: HL 1993

One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance the judge held the area was not sufficiently large to justify a concern. On appeal the case was reversed.
Held: The appeal was allowed. On the true construction of the phrase ‘a substantial part’ it meant not necessarily a large part, but rather a part of considerable importance and character.
Lord Mustill said: ‘The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision.’ and
‘The respondents say that the two stages of the Commission’s inquiry involved wholly different tasks. Once the Commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard-edged question. There is no room for legitimate disagreement. Either the Commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64(3) makes no difference. It does have a correct meaning, and one meaning alone; and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the Commission has reached a different answer it is wrong, and the court can and must intervene.
I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] A.C. 14. The present is such a case. Even after eliminating inappropriate senses of ‘substantial’ one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment.’


Lord Mustill


[1993] 1 WLR 23, [1993] 1 All ER 289


Fair Trading Act 1973


England and Wales


CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .

Cited by:

CitedNorwich and Peterborough Building Society, Regina (on the Application of) v Financial Ombudsman Service Ltd Admn 14-Nov-2002
The Ombudsman had found that the applicant had unfairly failed to notify its customers of the availability of better accounts, once it discontinued accounts of one type. The Society appealed saying that the finding of unfairness arose from matters . .
CitedRegina on the Application of T-Mobile (Uk) Ltd, Vodafone Ltd, Orange Personal Communication Services Ltd v The Competition Commission, the Director-General of Telecommunications Admn 27-Jun-2003
The applicants sought to challenge a proposed scheme regulating the prices of telephone calls.
Held: The principle objection was to termination charges, charges on calls between networks. The present charges were greater than the actual cost, . .
CitedOffice of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedBritish Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
CitedAl-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
CitedSugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Lists of cited by and citing cases may be incomplete.

Commercial, Licensing, Judicial Review

Updated: 12 May 2022; Ref: scu.183446