This Transcript has not been proof read or corrected. It is a working tool for the Tribunal for use in preparing its judgment. It will be placed on the Tribunal Website for readers to see how matters were conducted at the public hearing of these proceedings and is not to be relied on or cited in the context of any other proceedings. The Tribunal’s judgment in this matter will be the final and definitive record. IN THE COMPETITION APPEAL TRIBUNAL Case No. 1160-65/1/1/10 Victoria House, Bloomsbury Place, London WC1A 2EB 27 October 2011 Before: VIVIEN ROSE (Chairman) DR ADAM SCOTT OBE TD DAVID SUMMERS OBE Sitting as a Tribunal in England and Wales BETWEEN: (1) IMPERIAL TOBACCO GROUP PLC (2) IMPERIAL TOBACCO LIMITED Appellants – v – OFFICE OF FAIR TRADING Respondent CO-OPERATIVE GROUP LIMITED Appellant – v – OFFICE OF FAIR TRADING Respondent WM MORRISON SUPERMARKET PLC Appellant – v – OFFICE OF FAIR TRADING Respondent (1) SAFEWAY STORES LIMITED (2) SAFEWAY LIMITED Appellants – v – OFFICE OF FAIR TRADING Respondent (1) ASDA STORES LIMITED (2) ASDA GROUP LIMITED (3) WAL-MART STORES (UK) LIMITED (4) BROADSTREET GREAT WILSON EUROPE LIMITED Appellants – v – OFFICE OF FAIR TRADING Respondent (1) SHELL UK LIMITED (2) SHELL UK OIL PRODUCTS LIMITED (3) SHELL HOLDINGS (UK) LIMITED Appellants – v – OFFICE OF FAIR TRADING Respondent _________ Transcribed using LiveNote by Opus 2 International 1 Bell Yard, London, WC2A 2JR Tel: +44 (0)20 3008 5900 [email protected] _________ HEARING (DAY 21) Note: Excisions in this transcript marked “[…][C]” relate to passages excluded. APPEARANCES Mr Mark Howard QC, Mr Mark Brealey QC and Mr Tony Singla (instructed by Ashurst LLP) appeared on behalf of the Appellants Imperial Tobacco Group Plc and Imperial Tobacco Ltd. Mr Rhodri Thompson QC and Mr Christopher Brown (instructed by Burges Salmon LLP) appeared on behalf of the Appellant Co-operative Group Ltd. Mr Pushpinder Saini QC and Mr Tristan Jones (instructed by Hogan Lovells International LLP) appeared on behalf of the Appellants WM Morrison Supermarkets Plc and Safeway Stores Ltd and Safeway Ltd. Mr James Flynn QC and Mr Robert O’Donoghue (instructed by Norton Rose LLP) appeared on behalf of the Appellants Asda Stores Ltd, Asda Group Ltd, Wal-Mart Stores (UK) Ltd and Broadstreet Great Wilson Europe Ltd. Ms Dinah Rose QC and Mr Brian Kennelly (instructed by Baker & McKenzie LLP) appeared on behalf of the Appellants Shell U.K. Ltd, Shell U.K. Oil Products Ltd and Shell Holdings (U.K.) Ltd. Mr Paul Lasok QC, Ms Elisa Holmes, Mr Rob Williams, Ms Anneliese Blackwood and Ms Ligia Osepciu (instructed by the General Counsel, Office of Fair Trading) appeared on behalf of the Respondent. _____ October 27, 2011 Imperial Tobacco and Others v OFT Day 21 1 Thursday, 27 October 2011 -- 1 Q. If you go to the very beginning of the statement, the 2 (10.00 am) 2 date of it is 2005, it says in the first line that you 3 PROCEEDINGS IN CAMERA 3 were the buyer for ales, stout and cider at Sainsbury's. 4 MR LASOK: Madam, the room seems to be a bit fuller than it 4 Am I right in thinking that you are no longer employed 5 has been in the last few days. The people behind me 5 by Sainsbury's? 6 from the OFT, some of them you may not have seen before, 6 A. That's correct, yes. 7 but they are all within the confidentiality ring. On my 7 Q. Subject to that change, is there any change that you 8 right is Mr Aldred, who is representing Sainsbury. 8 would like to make in your statement? 9 Unless there is something that somebody wants to say, 9 A. No. 10 I was proposing to call Fiona Corfield. 10 Q. Is it true, to the best of your knowledge and belief? 11 MR ALDRED: Madam, members of the Tribunal, you will have 11 A. Yes, it is. 12 seen some correspondence yesterday between us and 12 Q. Am I right in thinking that your current employer has 13 Imperial Tobacco, and the position has now been 13 permitted you to take unpaid leave to give evidence at 14 formalised with regard to what was proposed yesterday, 14 this hearing? 15 as between us and Imperial, and if I could just hand up 15 A. They have actually now decided that they will pay me. 16 this, if I may. (Handed). 16 MR LASOK: Thank you very much. I have no further 17 Madam, I think the only point which was discussed 17 questions, but I think there are some people along the 18 between myself and the referendaire yesterday related to 18 row here who might have one or two for you. 19 the indication, I understand it's in the third point 19 Cross-examination by MR HOWARD 20 down, that that is something that the Tribunal is minded 20 MR HOWARD: Good morning, Mrs Corfield. 21 to accept, and on that basis, this would then be agreed 21 A. Good morning. 22 between Sainsbury and (inaudible). 22 Q. I am Mark Howard and I am acting for Imperial Tobacco, 23 THE CHAIRMAN: What the Tribunal has indicated, Mr Aldred, 23 and I want to ask you some questions. 24 is that generally speaking a deponent's signed witness 24 You tell us in your statement that you were the 25 statement and their evidence in the witness box is the 25 tobacco buyer, I think, from October 2000 to May 2002. 1 3 1 best evidence that they have to give. It's difficult at 1 What did you do before October 2000? 2 the moment to think of circumstances where the Tribunal 2 A. I worked in stores for Sainsbury's, I did an industrial 3 would need to refer to a draft witness statement. 3 placement I think in 1986, and then after I finished 4 MR ALDRED: Thank you very much, Madam. 4 university I went to work for Sainsbury's, I did their 5 MR LASOK: Madam, can I call Fiona Corfield, please. 5 training manager programme, trainee admin manager 6 MRS FIONA CORFIELD (affirmed) 6 programme, I worked my way up to deputy store manager 7 Examination-in-chief by MR LASOK 7 I also had a couple of district jobs to do with stock 8 THE CHAIRMAN: Thank you very much. Please sit down, 8 control and I think it was sort of bedding in a new 9 Mrs Corfield. 9 position for -- all the ordering in store was done by 10 MR LASOK: Mrs Corfield, I wonder whether you can be given 10 one person, so there was -- was on part of a district 11 core bundle 6. {C6/69/429}. If you open that, you 11 team that supported that role. 12 should see a document that is headed "Witness Statement" 12 Q. Was tobacco your first buying job? 13 and "Fiona Bayley"? 13 A. It was, yes. 14 A. Yes, that's correct. 14 Q. Then you became the buyer subsequently in May 2002 for 15 Q. Can you just confirm that you were at that time 15 ales, stout and cider. How long did you do that for? 16 Fiona Bayley? 16 A. About three -- just over three and a half years. 17 A. Yes, I was. 17 Q. After that, what did you do? 18 Q. Have you looked at that statement recently? 18 A. Then I did spirits from -- I think I got the job in the 19 A. I looked at it this morning. 19 November, but I didn't start until the January 2006, 20 Q. Could you just cast your eye over it again and tell us 20 I think that would have been. 21 whether or not that is your statement? 21 Q. How long did you do that for? 22 A. Yes, it is. 22 A. I did that for about 18 months and then I was asked to 23 Q. Could you turn to the last page, please. Is that your 23 move on to buying detergent, at which point I had 24 signature? 24 a discussion with Sainsbury's and I opted to take 25 A. It is, yes. 25 redundancy, as that wasn't -- 2 4 OPUS 2 International [email protected] Official Court Reporters +44 (0)20 3008 5900 October 27, 2011 Imperial Tobacco and Others v OFT Day 21 1 Q. You didn't fancy detergent? 1 mind if we are 5 per cent more expensive" as an example, 2 A. Well, it was okay, but not after spirits. 2 but in respect of tobacco at the time it was absolutely 3 Q. I was being flippant, I am sorry. But leaving aside the 3 fixed, "We must not be more expensive than Tesco and 4 attractions or otherwise of detergent, when you left -- 4 Asda". 5 are you working for another supermarket group now? 5 A. Yes, but on tobacco there was a thing called a low price 6 A. No, when I left Sainsbury's I took up a position with 6 guarantee list, and all the key lines were on there, 7 Palmer & Harvey to be the buyer for the whole of their 7 which probably accounted for, I think I said in my 8 beers, wines and spirits category, and I did that for -- 8 statement, maybe 90 per cent, 95 per cent of the 9 I started in January 2008 and did that until 9 turnover, so there would be a few lines that you could 10 December 2009, so just short of two years, then I had 10 be different on that wouldn't really make any 11 a year out travelling, and then in January 2011 11 difference.