The Standard of Proof in Civil Competition Law Proceedings

Abstract

Discusses the relevant Hong Kong decisions (of the Court of First Instance recently in Television Broadcasts Ltd v Communications Authority [2016] 2 HKLRD 41; of the Court of Final Appeal in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170) and UK decisions (of the Competition Appeal Tribunal in Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] CAT 1; JJB Sports plc v Office of Fair Trading [2004] CAT 17; of the House of Lords in Re H (Minors) [1996] AC 563; Re D [2008] 1 WLR 1499; Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11) on the issue of the appropriate standard of proof in civil competition law proceedings. Argues that the application of the civil standard of proof on the balance of probabilities in civil competition law proceedings classified as “criminal” for human rights purposes can be supported by two relevant factors: (i) the workability of the standards in light of the technical nature of the evidence involved; and (ii) the severity of the potential penalty.