Sir Marcus Smith, President of the UK Competition Appeal Tribunal

Sir Marcus was called to the Bar in 1991, and was a member of Fountain Court Chambers in London, where he had an extensive commercial litigation and international arbitration practice. He is the author of the leading textbook in the area of intangible property – ‘The Law of Assignment’ – and has written widely on matters of contract, trusts, insurance and private international law.

In 2021, Sir Marcus was appointed President of the United Kingdom Competition Appeal Tribunal (CAT), following appointment to the CAT as a Fee-paid Chairman in 2009, and as a Justice of the High Court in 2017.

Sir Marcus talked to the JAC on his first appointment to the CAT as a Fee-paid Chairman in 2009. Here, he tells us about the CAT and its role below:

“The CAT is a specialist judicial body with cross-disciplinary expertise in law, economics, business and accountancy whose function is to hear and decide cases involving competition or economic regulatory issues.

“The CAT deals with competition and communications cases, but these cases vary enormously, from the hearing of appeals on the merits in respect of decision of the Office of Fair Trading (OFT) or the media regulator Ofcom, to ‘follow on’ actions for damages and other monetary claims, to reviewing decisions in respect of merger and market references.

“The CAT is headed by the President. The CAT’s membership comprises two panels: a panel of chairmen (comprising the President, all Chancery Division judges and three part-time chairmen) and a panel of ordinary members. A Tribunal will generally comprise a chairman and two ordinary members. Trying cases is very much a collegiate experience.

“Working at the CAT is both challenging and rewarding. Difficult questions – both of fact and law – arise regularly, and a number of the cases heard by the CAT can be urgent. Merger and price control questions typically need to be handled quickly. The parties are frequently represented at hearings by the leading counsel in the competition law and related fields.

“A part-time Chairman does not have an obligation to sit a certain number of days a year (unlike a Recorder). Cases are allocated to a panel when they are first filed with the CAT, and that panel thereafter is responsible for case management. It can be difficult to predict quite how much work any given case entails but work at the CAT for a part-time Chairman therefore tends to come in bursts of activity around hearings.

“There is almost always a great deal of pre-reading to do, and a lot of material to assimilate. Writing judgments after a hearing is quite an intense process, and here I think I have been helped by my academic writing. Hearings themselves are fast moving, and it is the norm to cover a lot of ground. Annually, taking into account work out of court, I would say that the time commitment is rather more than that of a Recorder.

“If you choose to apply, it’s necessary to give careful thought to the application form. Your application needs to be supported with specific examples, demonstrating how you meet the criteria for appointment. This requires thought, and careful formulation, as the space on the form is not unlimited. It takes much longer than you think it would to complete the form, but if you do it well, it is very good preparation for the interview.”