Pfizer and Flynn v Competition Markets Authority [2026] EWCA Civ 765 concerned an exclusive distribution agreement between Pfizer and Flynn in 2012, under which Pfizer sold the marketing authorisation to Flynn for £1. Flynn then debranded the medicine and sold it to the NHS for up to 2682% higher than before, with the price of a 100mg pack rising from £2.21 to £59.53.
Following complaints, the CMA made a finding of unfair pricing in 2016. However, the CAT subsequently found the CMA was guilty of bias, had predetermined the outcome, and reversed the burden of proof and presumption of innocence, in Pfizer and another v Competition and Markets Authority [2024] CAT 65. It agreed Pfizer and Flynn had acted unlawfully but replaced the CMA’s reasoning with its own.
Both the CMA and the pharmaceutical companies appealed.
Rejecting the CAT’s approach last week, Lords Justice Green, Snowden and Zacaroli found the CAT ‘failed to engage with, or mischaracterised, the CMA’s decision on critical issues’ and was ‘wrong’ to set it aside. They held the CAT found errors ‘which, on a fair reading, the CMA did not make’. Rejecting the CAT’s finding of bias in the CMA’s approach, they stated ‘the CAT was wrong to find that the CMA predetermined the outcome… and examined the evidence in a biased and selective way’.
The court will now hear further submissions and decide whether to reinstate the CMA’s decision, including fines.
Juliette Enser, executive director of competition enforcement at the CMA, said it was ‘an important judgment’ which recognised ‘that our findings were based on a fair and robust assessment of the evidence’.
