While the Subsidy Advice Unit has been busy with reporting on proposed subsidies (12 reports already in 2025), there has not been the same level of activity over at the Competition Appeal Tribunal (“CAT”).

And so, the 2023 Durham Waste judgement aside, subsidy control jurisprudence remains a bit of a still pond. 

A new subsidy judgement from the CAT is, therefore, worth a mention!

Weis v Greater Manchester Combined Authority is an appeal to the CAT by Aubrey Weis about GMCA’s decision to lend £60.7million and £59.3million, respectively, to special purpose vehicles owned by the Renaker Group. The loans are proposed to be made under the Greater Manchester Housing Investment Loans Fund. Weis, whose business is in property development in Manchester, seeks a declaration that the loans would not be granted by a commercial operator or that they would be concluded on non-market terms (i.e. not consistent with the ‘commercial market operator’ (“CMO”) principle) and as such, would constitute an unlawful subsidy. 

In the weeks shortly before the substantive hearing date, the matter of confidentiality came to the fore. 

External eyes only

Weis asserted that disclosure of key documents relating to commercial terms of the loan arrangements was necessary to articulate his claim. He also submitted that if a confidentiality ring was to be established for the disclosure of unredacted documents, it should not be limited to external lawyers and experts only (“external eyes only”) – instead, he and/or his representative should be included.

GMCA maintained that a confidentiality ring should be established and that it should be external eyes only, on the basis that the materials requested for disclosure comprised documents that contained information confidential to the Renaker Group, which could not be disclosed beyond Weis’s legal advisers. 

In the first instance, the CAT ordered the establishment of an external eyes only confidentiality ring. It was envisaged that Weis would engage a suitable expert to review the material and the terms of the lending, who would then provide an expert report to be relied upon at the substantive hearing. However, the CAT also granted leave for Weis to apply to extend the ring, following the first review by his lawyers and experts of the documents disclosed. 

An application to extend the ring was duly submitted, requesting that Joel Weis - the son of Aubrey Weis – be added to the ring on the basis that the prohibitive costs of instructing a suitable expert meant that no representative had been able to review the unredacted documents and provide a report to enable Aubrey Weis to instruct his legal team.

The CAT was asked to consider whether Joel Weis should be granted access to certain sensitive financial information contained in three specific documents. The Weis legal team had considered all the materials disclosed and identified what information they thought Joel Weis should see in order that they may properly advise their client.

A rare outcome?

The order was made to grant Joel Weis access to the confidentiality ring, the need for open justice and access to evidence ultimately outweighing the need to preserve the confidentiality of information – even information that the CAT acknowledged it would not ordinarily allow someone who is active in the same business to access directly, particularly here, where the parties were competitors in the same district.

The specific facts and circumstances referred to by the CAT in its reasoning indicate that this is likely to be a rare outcome and does not represent a move away from external eyes only rings in general terms:

• The overriding consideration was the need for the litigation to proceed fairly and expeditiously. At the point of hearing the application, the proceedings had reached the stage of a pending hearing date but with no expert instructed. 
  
  
• In most cases, the client representative should be someone who will not subsequently be in a position to exploit any confidential information that they are permitted to access (e.g. in-house counsel). In this case, the unique corporate structure of the Weis group of entities meant that there was no other suitable individual within the organisation that would be able to take on the role of instructing lawyers and providing input on the information.
  
  
• The legal team for Weis had identified the “irreducible minimum of sensitive and confidential information” needed to be disclosed in order to get instructions.
  
  
• The CAT was mindful of the potential competitive advantage to be gained by utilising confidential information and imposed two protections: (i) Aubrey Weis and Joel Weis were ordered to provide appropriate undertakings to use the material for no other purpose and not disclose the contents of this information otherwise than in connection with these proceedings to their own legal team; and (ii) the material was to be made available to Joel Weis only at the offices of the legal team.

The substantive hearing has been listed to take place on 27, 29 and 30 May 2025 and we will watch with interest the development of the arguments around the CMO principle. 

Compliance with subsidy control legislation is crucial for both the provider of the subsidy and the recipient, whether in the public or private sector. To discuss the implications of this judgement or any other subsidy control rules on your organisation, get in touch with our expert team who will be happy to help. 

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