The hearing of the PL’s challenge to the CAT’s jurisdiction is scheduled to commence next week, on Wednesday 29 September.  Originally, this was scheduled for Monday 27 September but, a few weeks ago, the date was moved.  The Chronicle has, confusingly, just published an article presenting the 29 September date as news, but nothing has actually changed and, in any event, minor changes of this nature are very common, in order to accommodate the participants’ diaries.

According to the CAT website, it is being streamed live.  For those inclined to watch the hearing, it is due to start at 10:30am and there will be a link on the CAT’s website.

We may or may not know the outcome straight away.  The ruling will be published on the CAT website when ready.  Typically – and this is more likely where the legal arguments will be hotly contested, such as here – judges can take some a little bit of time to write judgments.  While we’re all focused on the outcome itself, the judgment has to be very carefully worded, because: (i) in our legal system – published judgments are a source of law, which can be called upon in future cases; and (ii) judges want to avoid their judgments being vulnerable to appeal.

My previous article in relation to the application itself, and what could happen at this hearing, is here (in particular, in sections 4 of 5 of that article).  In brief:-

  • We’re not likely to learn very much about whether the PL has acted anti-competitively. Those who choose to follow the hearing via the live stream are unlikely to hear juicy revelations.  There will be a lot of fairly arcane legal argument about the similarities and differences between the CAT case, and the arbitration.  In a nutshell, if St James’ Holdings are able to persuade the judge that the cases are substantially different, then the application will be defeated and the CAT claim will go ahead.  If the PL are able to persuade the judge that the cases areso similar that they should not be allowed to proceed at the same time, then the CAT claim will come to an end.
  • The arguments are finely balanced and it would be unwise to predict the outcome with any certainty. However, if the judge is in doubt, then this should help Ashley.  Often, the inclination of judges is to permit cases to proceed, rather than to make rulings which have the effect of ending those cases at an early stage.  The PL may therefore lose this skirmish.  However, we are unlikely – whatever the outcome – to gain much of an insight into how the arbitration is likely to go, or what is likely to happen in the CAT claim (if it proceeds).

It is possible, right up to 29 September, that the parties could reach an agreement which would mean the hearing does not happen (i.e. is “vacated”).  This could happen if, for example, the PL believes it will lose, and agrees to withdraw the application on the condition that Ashley will not seek reimbursement of the legal fees he has spent in responding to it.  Indeed, if one views the PL’s application as a pure delaying tactic (rather than as a genuine attempt to actually get rid of the CAT claim completely), an agreement reached as close to the hearing date as possible would be consistent with this aim.

In the grand scheme of things, the CAT case (in my view) is a sideshow.  It has very little to do with bringing a takeover closer, and much more to do with Ashley trying to get more money for himself.  Nothing new there.  The arbitration is, and has always been, the only thing that matters to the takeover.  That said, the frustration at the arbitration being private is understandable, and the increased interest in the CAT proceedings – as a result – is inevitable.  I’ll continue to try and provide updates in the hope that those who are still taking an interest in the CAT claim (and it might well be seen as an interesting matter, irrespective of whether it impacts the takeover) find the updates to be helpful and informative.

YOUSEF HATEM – @yousef_1892