The bold sentence lower down was the exact part of the CMC where the CMA second chair had to explain to the CMA first chair that the judge had said they (the CMA) would win arguments of disagreement between experts, even if Microsoft's new experts were included and took a different view to the CMA expert....
03 THE CHAIRMAN: Yes. (Pause).
04 MR WILLIAMS: Just as a matter of principle, to the extent that the evidence is relied
05 upon for the purposes of establishing a technical error or, indeed, an incontrovertible
06 technical error, clear authority there that that may well be an appropriate matter for
07 an authority in the position of CMA to have the opportunity to respond with its own
08 responsive expert evidence. I think Mr Beard has misread a point that we made in
09 our skeleton argument when we referred to the BGL case. What we were grappling
10 with in that reference was the question as to whether that evidence would come from
11 an independent expert or an internal expert, and I'll explain why that matters in
12 a minute. But the point we were making there is if one's dealing with the question as
13 to whether an error's been made, we will have to ask ourselves the question as to
14 whether that ought to be addressed by independent evidence rather than internal
15 evidence, because of the nature of the allegation. So we weren't relying on BGL --
16 THE CHAIRMAN: You weren't making an allegation in any --
17 MR WILLIAMS: The public law sense, yes.
18 THE CHAIRMAN: It's simply saying that the reasoning process in the decision
19 doesn't stack up. It's no more than that, isn't it?
20 MR WILLIAMS: Yes.
21 THE CHAIRMAN: I've had a note that we ought to rise for a transcriber break, and
22 I think we should do that shortly, but I think I am going to need to hear a little bit
23 more about why an independent expert economist could be needed. For my part,
24 I would rather hear from the economist whose reasoning has informed the panel, if it
25 isn't a panel member at all, in terms of how the decision has been put together. I am
26 conscious that it actually takes longer to put things in writing than actually to explain
1 matters orally. I should, I think, make clear that this tribunal is quite prepared,
2 provided it is fair and consistent with the spirit of judicial review, to look at different
3 ways of dealing with these questions. For example, speaking entirely for myself,
4 I would not have an issue with the economist involved in the decision being called to
5 explain his or her take on the expert material that was produced, without necessarily
6 being admitted, by Microsoft. In other words, one has not an exchange of papers,
7 which the tribunal reads without being able to ask questions, but one has the person
8 whose thinking is, in part at least, incorporated in the decision, saying: well, I've read
9 the reports that Mr Beard's clients have produced, we disagree. The disagreement
10 is one which is within the reasonable range of experts to disagree, and on that basis,
11 of course, the CMA would prevail. Now, that's something which I throw out there for
12 consideration, because I don't want the sheer burden of: this is the way we do things
13 normally, to derail better and quicker ways of doing things, if that is a better way of
14 doing it.
15 MR WILLIAMS: I didn't completely follow what you were putting to me, sir. Were
16 you effectively suggesting an appearance at the oral hearing to deal with these