Durkan was one of many companies found guilty of cover pricing by the OFT. It appealed to the CAT on three grounds of challenge: first Durkan Holdings and Durkan Pudelek challenged the OFT’s decision to hold them jointly and severally liable for the penalties imposed. Secondly, Durkan Limited disputed the OFT’s finding that it had supplied an unlawful cover price to another contractor in connection with works commissioned by a local authority. Thirdly, Durkan challenged various aspects of the way the fines were calculated.
On the first ground, the Tribunal unanimously concluded that the OFT had been right to hold Durkan Holdings liable because it found that at the relevant time Durkan Holdings could and in fact did exercise “decisive influence” over Durkan Pudelek.
On the second ground, the Tribunal unanimously concluded that the OFT had failed to establish, on the balance of probabilities, that the cover price came from the employee of Durkan Limited named in the decision. The OFT had therefore not demonstrated Durkan Limited’s involvement in Infringement 220 to the requisite legal standard.
On the third ground, the Tribunal concluded that the OFT had erred in using the last business year prior to the decision for determining relevant turnover; the correct business year was the one prior to the end of the infringement. The Tribunal dismissed the other challenges to the penalty.
Accordingly, the fines for which Durkan Pudelek and Durkan Holdings are jointly and severally liable were reduced to £2,436,000.
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