Appeal hearing set over £1.5m fine

Thursday 03 February 2022

A date of 30 March has been set for the court to hear an appeal by the Medical Specialist Group against a finding of anti-competitive behaviour and a £1.5million fine imposed by the Guernsey Competition and Regulatory Authority.

In December last year, the Medical Specialist Group (MSG) was critical of the Guernsey Competition and Regulatory Authority (GCRA) for imposing the fine when it had already lodged an appeal against the initial finding of anti-competitive behaviour.

“We are…extremely disappointed that the GCRA has chosen to impose this fine when we have already lodged an appeal to the Royal Court against its original ruling in order to protect the emergency and elective health care we provide to islanders,” said Dr Gary Yarwood of the MSG at the time.

“We will now need to expend time, effort and legal fees on challenging this punitive action at a time when we are working flat out to care for our patients as the omicron phase of this global pandemic continues.”

The time, effort and legal fees continued yesterday when the parties were in court to devise a timeline and make other preparations for the appeal hearing.

Pictured: The MSG was handed a penalty of £1,532,590 for infringing laws on anti-competitive business practices. 

The MSG was represented by Advocate Elaine Gray. The GCRA was represented by Advocate Mark Ferbrache.

The Bailiff, Richard McMahon, advised the Advocates to come to an agreement on how the appeal hearing in open court could deal with confidential information contained in letters submitted by the Medical Specialist Group.

The appeal hearing on 30 March will deal with both the initial finding against the MSG and the consequential fine handed out by the GCRA.

The initial finding by the GCRA against the MSG was announced in September last year.

The GCRA said the MSG had infringed the law by imposing restrictions on its consultants which stopped them from practicing medicine in Guernsey for up to five years after leaving the practice.

Pictured: The MSG and the GCRA will return to court on 30 March for the appeal hearing.

In Guernsey competition law, non-compete clauses are allowed only if absolutely necessary. The GCRA said the MSG provided no evidence to show why its non-compete clause was necessary.

The GCRA argued that the clause could limit healthcare choices to the public and increase waiting times and prices.

The £1.5million penalty was calculated by determining 10% of the MSG’s annual turnover and multiplying it by the number of years for which it had been infringing the law.

The GCRA then increased the penalty by another 10% for a series of aggravating factors, including the MSG requesting a consultant to withdraw concerns which first alerted the GCRA to the practices which it found infringed the law.

The MSG was critical of the decision at the time and said the GCRA’s conclusions were “flawed and deeply unattractive”.